Position Paper
Working Group 1:
“Strengthening the Rule of Law: The Right to an Effective Remedy
for Victims of Human Rights Violations”
Author: Prof. Vesna Petrovic,Belgrade Centre for Human Rights
The weaknesses accompanying the human rights protection system on the universal plane have been discussed for a long time, although efforts have been invested in improving the system over the past 20 years, since the adoption of the Vienna Declaration and Programme of Action (VDPA). Although the results of these efforts areunsatisfactory on the whole, some improvements have been made:
- The Office of the United Nations High Commissioner for Human Rights was established by the UN GA on 20 December 1993 in the wake of the 1993 World Conference on Human Rights.
- The International Criminal Court (ICC) was established. Despite the numerous obstacles it has encountered in practice, its establishment marks the beginning of the achievement of a very ambitious goal of bringing to justice individuals responsible for large-scale and systematic human rights violations (defined by the Rome Statute as crimes against humanity).
- The reform of the monitoring system introduced by the Commission on Human Rights was completed in 2006 by the establishment of a new organ – the Human Rights Council – which is expected to be much more efficient and much less politicised than the erstwhile Commission. A new monitoring system was introduced – the Universal Periodic Review – under which all states, without exception, are subjected to oversight of their compliance with human rights standards every four years.
- The Human Rights Council adopted a number of resolutions establishing mandates for special procedures. There are currently 36 thematic and 13 country procedures, wherefore the Council bases its assessments of the situation in individual countries on the reports, findings and recommendations of special rapporteurs.
-National Human Rights Institutions (NHRIs) have been established in over 100 countries. Their mandates and structures vary, but many of them play a very important role in the protection and promotion of human rights at the national level.[1]As of February 2013, the International Coordinating Committee of National Human Rights Institutions (ICC) and its Sub-Committee on Accreditation awarded the A status in accordance with the Paris Principles to only 69 NHRIs, indicating that a fair share of NHRIs do not fulfil the six main criteria to be fully functioning: a broad mandate, autonomy from government, independence, pluralism, adequate resources and adequate power of investigation.
- The UN treaty bodies introduced specific improvements and advanced the system of the monitoring they conduct by reviewing periodic reports. The major delays in reviewing the reports, which had threatened to block the work of the committees, have partly been addressed as the committees now review several reports simultaneously. Dialogue with the states is facilitated by the practice of adopting lists of questions the states reply to before the sessions at which their state reports are reviewed. The states’ reporting obligations have been simplified as they now prepare a joint basic document they submit to all the committees. The fulfilment of the final recommendations is partly secured by the introduction of the compliance monitoring procedure.
A radical reform of the system of monitoring by the treaty bodies has not, however, been carried out so far; the committees have tried to and partly succeeded in improving their work in various ways. The number of committees and the number of their members have greatly increased since 1969, when the first committee, the Committee against Racial Discrimination began working, but these increases were not accompanied by an adequate increase in the UN administration providing them with technical support. Most of the improvements were initiated by the committees themselves. They took decisions within the confines of their purviews, mostly with respect to their modus operandi and organisation of sessions. However, the situation was not sufficiently improved by these decisions, as these individual, ad hoc reactions of some committees did not lead to a substantive reform of the entire system.
The situation regarding the victims’ right to an effective remedy is extremely unsatisfactory, which is the most evident in reviews of individualcomplaints. The right of victims of human rights violations to effective legal remedies and fair and adequate reparation is still far from being fully achieved, necessitating in the further consolidation of the rule of law principles and of international mechanisms for monitoring the states’ compliance with international standards and in the more efficient protection of victims of human rights violations. The efficiency of protection must be simultaneously improved on both the national and international planes.
The establishment of a World Court of Human Rights would clearly provide the victims of human rights violations with adequate court protection and guarantee them the right to complain to an independent international judicial body. The establishment of such a court and the judgements it would render would align the practices and interpretations of international norms by other international human rights bodies. The establishment of a Registry of the World Court of Human Rights, staffed by legal professionals with experience in human rights, like the Registry of the European Court of Human Rights (ECtHR), would result in greater professionalism and step up the individual complaint review procedure.
The Draft Statute of the World Court of Human Rights includes a large number of provisions advancing the protection system, above all because it provides for the filing of complaints by states, individuals, non-government organisations or groups of individuals claiming to be a victim of a violation of any right the respondent state is under the obligation to safeguard by ratifying an international treaty guaranteeing that right.
According to the Draft Statute, the World Court of Human Rights would also review accountability for violations of human rights by non-state actors.[2]This is extremely important since these actors have been increasingly violating human rights in practice. Particular note is made of the accountability of special missions or peace forces established within peace and humanitarian operations, which often assume full or partial administration of the territories they are mandated with.[3]These international actors are not party to any human rights treaties but have the opportunity to violate them given the powers vested in them. The same applies to transnational corporations that can also be responsible for grave violations of some human rights. The World Court of Human Rights could have jurisdiction over these actors.
The establishment of the World Court would not necessitate in amending the existing norms, the treaty bodies would continue their work, their reform would not be jeopardised, but would continue in the direction it has taken, while the talks on the adoption of the statute establishing the World Courtcould proceed simultaneously with the reform of the treaty bodies. The treaty bodies would continue rendering non-binding decisions, while the World Court would have jurisdiction only over the states that ratified its Statute and the treaties they are parties to.
The World Courtcould gradually assume jurisdiction over examining individual and inter-state complaints, which would enable the treaty bodies to focus more on interpreting international standards and reviewing important topics in the field of human rights. The treaty bodies would be able to devote themselves to serious examinations of the state reports and help the states overcome the difficulties in implementing the individual treaties, i.e. they would be expert bodies that would have the role of interpreter and adviser. They would also be able to devote themselves much more to extending technical and professional support to the states in need of such support.
Another advantage would be that the World Court would be able to initiate inquiries into cases of large-scale and systematic human rights violations.The inquiries could be entrusted to a special chamber, the members of which would be specialised for this function.
The establishment of the World Court of Human Rights would not overlap with the powers of the UN committees to review individual complaints, because reviews of individual complaints would be conducted in parallel in the UN system for a specific period of time. The Court would over time assume the jurisdiction of the treaty bodies for initiating reviews of individual or inter-state complaints. The treaty bodies would retain jurisdiction over state reports and have much more time to examine them. In time, the treaty bodies could unite into a single body that would only examine the reports.
The greatest obstacle to the establishment of the World Court of Human Rights is that this idea still has not won the support of the governments of a number of UN member states, although it does enjoy the support of numerous national and international non-government organisations and a large share of the academic community. This is why the support expressed to date should be availed of and adequate steps should be taken to prompt the states to start reviewing this possibility more seriously. This can be achieved by:
- Creating the broadest possible coalition of international and national human rights non-government organisations to jointly advocate the establishment of a World Court of Human Rights, relying on the experiences of the Coalition for the International Criminal Court (CICC);
- Prevailing upon national human rights institutions to take part in the campaign for the establishment of the World Court of Human Rights, which could be conducted through the International Coordinating Committee of NHRIs.
The activities promoting the establishment of a World Court of Human Rights, which are likely to last long and with an uncertain outcome, have to be accompanied by advancing the individual complaint procedure, continuing thereform of this monitoring system to provide the victims with better protection, the right to a remedy and reparation.
The main weakness of the individual complaint review procedure is that the UN committee decisions are not binding on the states, wherefore the victims have more frequently been opting for the regional monitoring mechanisms and submitting their complaints to the Inter-American Court of Human Rights or the ECtHR. A large share of the world’s population, however, cannot use the regional mechanisms. Many are unaware that they can submit individual complaints to UN treaty bodies; even those who are, have to overcome numerous obstacles to apply this mechanism. Language is one of them, given that the complaints must be lodged in one of the official UN languages. The second is the fact that a complainant cannot claimindigence and receive legal aid or be compensated for the costs of submitting a complaint or the costs and expenses sustained during the proceeding before a committee. These problems could be addressed by:
- UN committees adopting much more precise conclusions after reviewing the periodic reports, requiringof the states to fulfil their obligation to secure an efficient and effective remedy in their domestic law as provided for by Art. 2(3) ICCPR, Art. 14 of the CaT, Art. 2 of the CEDAW, Art. 6 of the CERD and the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law;[4]
- Establishing a fund, which the individual complainants could use if they lack the funding to cover the costs of proceedings before international bodies (e.g. for the translation of the submissions into one of the official UN languages, to compensate the legal fees of their representatives before the committees, to cover the costs of evidence collection, et al);
- States assuming the obligation to provide in their national legislation legal aid for persons lacking the funding to pursue proceedings before national courts and international bodies, including the obligation to enable human rights non-government organisations to be part of the legal aid system;
- States providing the NHRIs they are establishing with jurisdiction to receive and review individual complaints and conduct inquiries into allegations of human rights violations, which would enable victims of human rights violations who have difficulty initiating court proceedings to seek protection before the NHRIs.
- Incorporating international treaty norms in national law and aligning them with the cultural specificities of each country, given that research has shown that international norms often become part of domestic legislation more or less spontaneously and that the effect of human rights norms incorporated in national law in this manner is much greater.
[1]Para 36 VDPA.
[2]Above all, inter-governmental international organisations (the European Union, the International Monetary Fund, the World Trade Organization, the World Bank, NATO, and others) and the United Nations and its specialised agencies.
[3]The European Court of Human Rights Grand Chamber also rendered its view on this issue in its decision as to the admissibility of the Behrami and Behrami v. France,andSaramati v. France, Germany and Norwayapplications, (App. Nos. 71412/01 and 78166/01), of 2 May 2007.