Complaint procedures under human rights treaties and their impact on special rapporteurs

¶ … complaints from individuals under the various human rights treaties. How do such procedures affect the work of the special rapporteurs under the extra-conventional system?

The system of the protection of human rights represents one of the most important mechanisms the international society has successfully set in place following the Second World War. This success is largely due to the existence of the United Nations and other international organizations such as the OSCE in Europe which deal with such issues. Their institutions related to human rights affairs have created a framework which enables individuals to press charges and complaints regarding human rights abuses made by states and organizations. However, an important aspect of the system of protection of human rights has also been the activity of the Special Rapporteurs for the United Nations who represents an extra-conventional mechanism of protection. In this sense, both the activities of the individuals manifested through their complaints and that of the Rapporteurs through their reports and investigations are intermingled and make up an effective system of protection which allows individuals to have their human rights respected and those in breach of these rights punished.

The present paper discusses the way in which the procedures available for individuals to file complaints in regard to human rights abuses contribute to the current system of the protection of human rights through the use of the available treaties in this sense. Moreover, taking into account the fact that the activities of the Special Rapporteurs are part of the extra-conventional protection system, the paper will analyze the way in which the these procedures affect their activity in the area.

In order to have a better understanding of the way in which individual complaints and extra conventional mechanisms work together in order to create a better and improved human rights protection system, it is important to consider several aspects. Thus, the first part of the analysis will address the general system of human rights protection, both inside the UN and in other organizations such as the OSCE. Second, a presentation of the mechanisms set in place is important because it offers the framework individuals can use to defend their rights. Third, several cases will be discussed as a case in point for the way in which individual complaints have succeeded or not to stand against human rights abuses. Finally, with these matters in regard, the way in which these actions and mechanisms affect the activities of the Special Rapporteurs will be dealt with in order to underline the way in which individual actions and extra conventional ones manage to address the crucial issue of human rights protection.

Part one: General system of protection of human rights

The United Nations system bases its activities on several legal instruments which make up the UN protection system. These include, first and foremost the Council on Human Rights, the most important instrument through which the UN can act at the level of the international system. There have been many debates over the usefulness of a Human Rights Council, taking into account the fact that the Commission on Human Rights played a secondary role in the system of the United Nations. In this sense, there have been views which consider that the role of the UN in human rights protection, one of the most important activities of the organization, has been minimal precisely because the organism accredited for taking this position lacked political support (Russbach, 1994). However, the current system based on the mechanisms of the Council tries to "promote the full implementation of human rights obligations undertaken by States and follow-up to the goals and commitments related to the promotion and protection of human rights emanating from United Nations conferences and summits" (General Assembly, 2006). Therefore, from this point-of-view, it is fair to say that the most important mechanism of the UN in this respect is the Human Rights Council.

The United Nations is the advocate of human rights since its inception and has worked to promote them and the respect for them since the late 1940s. However, the international law is limited in its development especially taking into consideration the fact that developing a piece of international law requires the acceptance of states at the political level, an aspect which is rather hard to attain. Therefore, the mechanisms which have actually been agreed upon are representative for the way in which human rights have developed.

These mechanisms include seven conventions which address the issue of human rights from different perspectives. Thus, there are several essential documents such as "The Universal Declaration of Human Rights," "International Covenant on Economic, Social and Cultural Rights 1966," "International Covenant on Civil and Political Rights 1966," "Optional Protocol to the International Covenant on Civil and Political Rights," "Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty" (Office of the United Nations High Commissioner for Human Rights, 2008).

These legal aspects and tools are important for the way in which the system can develop because it offers the means through which institutions, states, as well as individuals can address the issue of human rights in a manner that defends their rights. The Universal Charter for Human Rights is probably the most important document of the UN not necessarily because of a certain legal values that it may poses or not, but more importantly due to its moral impact. Thus, it represents the cornerstone of the human rights protection system simply due to the fact that it was written in a time when the right to life as stipulated in the Declaration was something put it doubt.

Despite the fact that the most important piece of document related to the issue of human rights is not necessarily important for its legal aspect, the UN system is a compact mechanism of legal tools. In this sense, a "series of international human rights treaties and other instruments adopted since 1945 have conferred legal form on inherent human rights and developed the body of international human rights. Other instruments have been adopted at the regional level reflecting the particular human rights concerns of the region and providing for specific mechanisms of protection. Most States have also adopted constitutions and other laws which formally protect basic human rights" (Office of the United Nations High Commissioner for Human Rights, 2008). Therefore the matter of the human rights as well as the protection of these rights is not an issue reserved to the United Nations, but rather one which each nation state must monitor and abide. In the situation in which this aspect is not respected at the national level, the individual has the right to file a complaint against the state for having breached his human rights.

The UN is not the only organization which aims at solving the issues of human rights. There are as well other regional organizations whose aim is to ensure that human rights are respected in Europe if one talks about the OSCE. More precisely, the OSCE however adopts the universal principles of the United Nations, yet act in a local manner. For instance, one of the most important initiatives of the OSCE is the increase of awareness in terms of human rights. In this sense, the European initiatives is related to several mechanisms which include "the Vienna Mechanism which was established in 1989, established a regulatory board known as the Human Dimension Mechanism that promotes human rights through negotiating, mediating, and fact-finding. Bilateral negotiators, OSCE experts, and rapporteurs conduct the Human Dimension Mechanism with assistance from the OSCE Office for Democratic Institutions and Human Rights (ODIHR)" and the "The Moscow Mechanism was established in 1991. Along with the Vienna Mechanism, it is an instrument for protection of the "Human Dimension." While the Vienna Mechanism allows for inquiries into states' human rights records, the Moscow Mechanism allows for independent experts to resolve human dimension conflicts in member states. Under the Moscow Mechanism, there may be an investigation of human dimension questions in extreme situations without the consent of the state in question. Its experts are appointed by OSCE member states" (Human Rights Education Association, n.d.). These mechanisms are important from two points-of-view: on the one hand, it offers a perspective on the way in which European states decide to tackle the issue of human rights; and on the other hand it sets a real mechanism for implementation of huma rights through sanctioning mechanisms in Europe.

Part two: mechanisms for protection

There are several mechanisms which can be useful and that are considered to have worldwide jurisdiction. Most of the times they are instruments of the United Nations because the UN offers the most comprehensive view on human rights and individual freedoms as well as the most important political and economic resources.

One of the mechanisms is the Human Rights Council. Another one however is comprised of several instruments aimed at dealing with human rights others than the most common ones. In this sense, the United Nations Development Program or the World Food Organization are relevant examples to point out the fact that human rights does not necessarily mean only the right to life and to a fair treatment without being subjected to torture and degrading treatments. Human rights according to the practice of the UN also imply "the right of everyone to have access to safe and nutritious food" (UNESCO, 2004). Therefore, given this example one of the means used by the UN in its attempt to offer the possibility for the respect of this right has been to give "the mandate to the High Commissioner for Human Rights to better define the body of rights related to food. In 2000 a UN Special Rapporteur for Right to Food was appointed and in 2003 an intergovernmental working group was formed to establish guidelines to promote the progressive realization of the right to food" (UNESCO, 2004).

Indeed there are several types of responses that can be given to the breach of human rights throughout the world. Depending on the type of rights being placed under discussion, there can be several mechanisms set in place. Thus, when there is the matter of genocide, which implies the death of a large number of people, the International Criminal Court comes into effect. The right to life is in this case put in question. At the same time though, the right to a decent live to one without political constraints and additional pressures; therefore the ICC in this sense helps protect the innocent and punish the guilty ones, especially state officials who disposed of their power with the aim of causing human prejudices. One relevant example in this sense is the International Criminal Court for Rwanda where former leaders are accused and trialed for crimes against humanity. The action undertaken in their situation can be said to be rather important for the way in which the international criminal works for the protection of the individuals and the respect for human life.

Aside from the general and worldwide mechanisms concerned with the respect for human rights, there are several mechanisms which deal particularly with the respect of certain covenants and rules. In this sense, the United Nations benefits from the expertise and help of "four treaty bodies: The Human Rights Committee (HRC) which considers individual communications relating to States parties to the First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR); the Committee Against Torture (CAT) which considers individual communications relating to States parties who have made the necessary declaration under article 22 of the Convention Against Torture (CAT); the Committee on the Elimination of Racial Discrimination (CERD) which considers individual communications relating to States parties who have made the necessary declaration under article 14 of the International Convention on the Elimination of Racial Discrimination (ICERD), and the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) which considers individual communications relating to States parties to the Optional Protocol to the International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)" (International Gay and Lesbian Human Rights Commission, n.d.). This wide complex of mechanisms comes to prove the fact that the most important aspect of the protection of human rights is represented by the UN system, with its numerous programs and regulations.

There commissions are the four important mechanisms of the treaties which allow complaints to be made and which play a major role in establishing the right of an individual to be respected and protected in the society.

Part 3: Cases

There are several cases in which the human rights have been clearly violated and these are often attributed to different countries. Probably one of the most democratic country in the world, Australia is at the same time one of the few democratic countries which does not hold a charter of human rights, nor a bill of rights as expected. This is why there have been many arguments to suggest that in fact the negative record of the Australian state is aimed at being reduced. In this sense, the government is making increased efforts to support both the idea of the protection of human rights, as well as the procedure.

One of the results of this approach was the establishment of a document which points out the steps and the coordination of actions with the aim of reducing the human rights abuses. Thus, according to the document, the Australian government has been faced with the provisions of the "Optional Protocol procedures" related to the Human Rights treaties for more than 13 years. (Hearn, 1999) by 1999 "there have been 29 communications lodged against Australia under the Optional Protocol procedures. [3] the majority of these communications have been lodged with the Human Rights Committee (the Committee), with only three communications lodged with the CERD Committee and two communications lodged under the CAT" (Hearn, 1999).

These mechanisms are especially designed to address the problems of every person who addresses the commissions and thus, the procedure appears to be rather simple. Another reason for which the procedures are not seen as impending the legislative process is the fact that one needs to have an easier and accessible atmosphere in order to choose to address the court or the commission. The basic mechanism for addressing a complaint revolves around the idea that an individual can complain under the form of individual communication. More precisely, "any individual who claims that her or his rights have under the covenant or convention have been violated by a State party to that treaty may bring a communication before the relevant committee, provided that the State has recognized the competence of the committee to receive such complaints. Complaints may also be brought by third parties on behalf of individuals provided they have given their written consent or where they are incapable of giving such consent" (Office of the United Nations High Commissioner for Human Rights, 2007).

The importance for this act is rather significant for the way in which the mechanisms for the protection of human rights are working. In general terms, the individual is not an actor on the international scene. Most often, states interact at the international level and are labeled as being the only actors that are able to engage in processes that include the application of the international law. However, the international doctrine has concluded that there needs to be a situation in which the individual can protect itself from any possible atrocities or breaches of human rights made by their state. Therefore, through the mechanism of petitioning, it is fair to say that any individual has the right to defend its human rights in front of his state. This approach is important because it allows the international bodies to monitor the situation in the countries that have been accused of abuses and may prevent other abuses for being committed.

As part of the human rights debate and concerning the mechanisms used for the protection of human rights, it can be said that one of the most important systems of human rights protection is represented by the European Court for Human Rights which follows the enactment of the European Convention on Human Rights. The Court works exclusively on the application of the European Convention which discusses both essential rights such as the right to live and a decent living, up to the right to a fair trial and a proper consideration of all the rights enshrined in the Universal Declaration of Human Rights.

The caseload of the European Court for Human Rights represents an important example for the way in which individuals can affect the way in which a particular country is being viewed and monitored. Some of the most common cases certain countries had to face along the years included the right to property. More precisely, countries such as Romania have been forced to pay damages and give back numerous houses the former communist regime had taken by abusing the power and refusing people the right to property. At the same time, the state has been accused by the individual who can petition the European forum after having exhausted all the national means, of not allowing him the right to a proper and fair trial. Such cases are rather famous and have offered the European Court important precedents and a strong jurisprudence in this areas so that human rights can be respected in a manner that stresses both the importance of the individual petitioning and the role of the European Court.

Part of the activity of the European Court but at the same time of the mechanisms functioning inside the UN is indeed the procedure related to the communication of the individuals. However, an important aspect of the entire procedure is that fact that the process does not imply particular knowledge in law or other practices.

The aim of the entire procedure is to make human rights protection an action available for every individual. More importantly however, individual complains represent the means of connection between the various mechanisms of the system. To be more precise, the procedure is very important as "tt is through individual complaints that human rights are given concrete meaning. In the adjudication of individual cases, international norms that may otherwise seem general and abstract are put into practical effect. When applied to a person's real-life situation, the standards contained in international human rights treaties find their most direct application. The resulting body of decisions may guide States, non-governmental organizations (NGOs) and individuals in interpreting the contemporary meaning of the texts concerned" (Office of the United Nations High Commissioner for Human Rights, 2007).

Part four: acts and mechanisms of the Special Rapporteurs and how they are influenced by the individual claims of human rights abuses.

The aspect of the Special Rapporteurs is rather important for the way in which human rights are protected worldwide. They offer a focused perspective on various situations which cannot be known up close but from actually experiencing the situations on the ground. The UN has established in this sense a mechanism which permits the organization to deal with the human rights abuses having at their disposal the actual information from the sight. These areas of interaction are called Special Rapporteurs and are part of the Special Procedures of the Human Rights Council. More precisely, "Special procedures" is the general name given to the mechanisms established by the Commission on Human Rights and assumed by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world (...)Special procedures are either an individual (called "Special Rapporteur," "Special Representative of the Secretary-General," "Representative of the Secretary-General" or "Independent Expert") or a working group usually composed of five members (one from each region)" (Office of the United Nations High Commissioner for Human Rights, 2008).

The activities of the Special Rapporteurs include the consideration of both the situation in the countries they have been assigned to in terms of the way in which government focuses on human rights, as well as of the situation among the population. The most important means through which the activity of the Special Rapporteurs can be influenced by the communications of the individuals is through their actual consideration. More precisely, when the Special Rapporteurs visit a country, they tend to be in direct contact with the government and the bodies which deal with the issue of human rights protection. However, despite the fact that the government may or may not hide certain evidence from the Special Rapporteurs, in most situations the abuses of human rights surface. However, it is important that the actual evidence be available to the Rapporteurs.

A relevant case in this aspect is the way in which the rights of the Aborigine people of Australia, Ecuador, Sweden, Canada, or Peru have been breached on a constant basis. However, these aspects were visible for the higher forums of authority only in the moment in which the Special Rapporteurs submitted their analyses of the situations.