Commission on the Status of Women
21 January 1997
COMMISSION ON THE STATUS OF WOMEN
10-21 March 1997
Item 5 of the provisional agenda
CONVENTION ON THE ELIMINATION OF ALL FORMS OF
DISCRIMINATION AGAINST WOMEN, INCLUDING
THE ELABORATION OF A DRAFT OPTIONAL
PROTOCOL TO THE CONVENTION
Comparative summary of existing communications and
inquiry procedures and practices under international
human rights instruments and under the Charter
of the United Nations
Report of the Secretary-General
INTRODUCTION................................. 1 - 10 4
I. TREATY-BASED PROCEDURES............... 11 - 10 66
A. Treaty-based communications
procedures........... 12 -100 6
1. Admissibility criteria .......... 19 - 43 7
(a) Requirement of ratification or
declaration of acceptance..... 20 - 21 8
(b) Anonymity................. 22 8
(c) Subject-matter of a communication
(rationae materiae).............23 - 24 8
(d) Jurisdiction (admissibility
ratione loci) ....................25 9
(e) Abuse of the right to submit a
communication ................... 26 9
(f) Duplication of procedures........ 27 9
(g) Exhaustion of domestic remedies 28-29 9
(h) Written nature ................ 30-31 10
(i) Admissibility ratione temporis ..32-35 10
(j) Reservations to procedures ..... 36-41 11
(k) Reference to a State party..... 42-43 12
2. Standing .......................... 44-48 12
3. Proceedings on the merits........... 49-55 13
4. Working groups and special
rapporteurs......................... 56-60 14
5. Views and follow-up.................. 61-66 15
6. Interim measures .................... 67-70 17
7. Confidentiality ......................71-83 17
(a) Anonymity of the communication ..72-73 18
(b) Examination of communications in
closed meetings................. 74-75 18
(c) Confidentiality of documents.....76-77 18
(d) Final decisions of the
Committees ......................78-80 19
(e) Identity of the author ..........81-83 19
8. Participation of representatives .....84 19
9. Information considered.............. 85-88 20
10. Registers .......................... 89 21
11. Publicity ......................... 90-91 21
12. Caseload and meeting time .......... 92-94 21
13. Funding of the work of the
treaty bodies ....................... 95-98 22
14. Composition of the treaty bodies .... 99-100 23
B. Treaty-based inquiry
procedures ....................... 101-106 23
II. CHARTER-BASED PROCEDURES................. 107-133 24
A. Communications procedure
of the Commission on the
Status of Women ................... 108-116 25
B. 1503 procedure of the
Commission on Human Rights ........ 117-133 26
1. The Commission on the Status of Women, in its resolution
40/8 of 22 March 1996 on the elaboration of a draft optional
protocol to the Convention on the Elimination of All Forms of
Discrimination against Women, requested the Secretary-General to
provide to the Commission on the Status of Women at its forty-
first session a comparative summary of existing communications
and inquiry procedures and practices under international human
rights instruments and under the Charter of the United Nations
(E/1996/26, chap. I, sect. C). The present report is submitted
in accordance with that request.
2. In the same resolution, the Commission requested the
Secretary-General to invite Governments and intergovernmental and
non-governmental organizations to submit additional views on an
optional protocol to the Convention, taking into account the
elements contained in suggestion 7, adopted by the Committee on
the Elimination of Discrimination against Women at its fourteenth
session, as well as the deliberations of the in-session
open-ended working group of the Commission. It requested the
Secretary-General to submit to the Commission on the Status of
Women at its forty-first session a comprehensive report,
including a synthesis of the views requested above. The report
of the Secretary-General concerning the views expressed will be
before the Commission in document E/CN.6/1997/5.
3. The goal of the full and effective implementation of
international obligations in the field of human rights is to
enhance the enjoyment of human rights and fundamental freedoms at
the national level. Over the past 50 years, a wide array of
bodies, mechanisms and procedures have been developed and
established by the United Nations human rights system for the
purpose of strengthening such national implementation. Whether
established to address issues of a general or of a very
particular concern, together they afford formal protection
covering an extensive body of international human rights
standards and norms. As human rights and fundamental freedoms
are inherent in the human person, they, as well as the procedures
for their protection and promotion, apply to all human beings,
women and men alike. At the same time, the international
community has found it desirable to adopt a number of specific
instruments which address, in a comprehensive manner, women's
equality with men and non-discrimination.
4. More recently, increasing attention has been given to
efforts to enable women to make more effective use of existing
implementation procedures, as well as to develop new procedures
to ensure to women the equal enjoyment of their human rights and
fundamental freedoms. In that regard, both the Vienna
Declaration and Programme of Action adopted at the World
Conference on Human Rights and the Platform for Action adopted at
the Fourth World Conference on Women envisage the possibility of
introducing a right to petition under the Convention on the
Elimination of All Forms of Discrimination against Women 1/ in
order to remedy women's unequal use of, or access to, existing
procedures. An apparent lack of awareness of the gender
dimensions of human rights by existing mechanisms and procedures
has also been noted.2/ A right to petition under the Women's
Convention has thus come to be seen as one means for rectifying
this situation. At the same time, the need for mainstreaming a
gender perspective in all human rights activities of the United
Nations is recognized.3/
5. Perhaps the most basic distinction among international
implementation procedures is the source of their existence. That
source can be either a treaty or the Charter of the United
6. Treaty-based procedures are based on a treaty covering
international human rights law. They are operative only with
respect to States that are party to these legal instruments.
Through ratification, States ipso facto accept to cooperate in
good faith with any control mechanisms established by such a
7. The most commonly applied and accepted human rights
supervisory procedure is the treaty-based reporting system.4/
This is characterized by the following common elements: the
reporting obligations are spelled out in treaty provisions;
States parties to a human rights treaty also accept the
obligation of reporting; the periodicity of reporting is
established; independent expert bodies are created to examine the
reports of States parties; the terms of reference of the
supervisory body are defined in the treaty; and compliance with
treaty provisions is monitored through a constructive dialogue
between the expert body and the State party. While the content
for such reports is outlined in very general terms in the
treaties themselves, each of the human rights treaty bodies has
adopted general guidelines regarding the form and content of
reports. The Committee on Economic, Social and Cultural Rights,
in its General Comment No. 1 (1989) also elaborated the
objectives that are served by the process of preparation and
submission of reports.5/
8. In addition to the reporting system, several
international human rights instruments establish procedures
allowing individuals and/or groups to submit communications
alleging violations of rights protected under that instrument.
Furthermore, one international instrument currently in force
authorizes the expert body to initiate inquiries into situations
that might represent a violation of the treaty. These
treaty-based communications and inquiry procedures are summarized
in section I below.
9. Charter-based procedures, on the other hand, are based on
a decision, usually in the form of a resolution, of a policy
organ which is a representative body reflective of the membership
of the United Nations. The legal basis for these mechanisms is
thus the Charter of the United Nations, and in particular Article
1, and Article 56 in conjunction with Article 55. Over the
years, such mechanisms have been created primarily by the
Commission on Human Rights or, on its recommendation, by the
Economic and Social Council. They include a number of ad hoc or
non-conventional entities, such as the establishment of working
groups or the appointment of special rapporteurs,
representatives, independent experts or other groups or
individuals to investigate human rights situations in particular
countries or areas, or on particular themes. The mandate and
terms of reference of such procedures and mechanisms are, in
general, contained in a resolution of the Commission on Human
Rights 6/ and/or in a resolution or decision of the Council.
10. Beyond these mechanisms, both the Commission on the
Status of Women and the Commission on Human Rights have had for
many years specific procedures for handling communications
concerning human rights. These two Charter-based procedures are
summarized in section II below.
I. TREATY-BASED PROCEDURES
11. The reporting procedure forms an integral part of the
obligations assumed by a State party upon ratification of, or
accession to, international human rights treaties. 7/ The same
cannot be said for the individual communications procedures
established under some of those same instruments. Existing
communications procedures, whether established in a separate
optional protocol or contained in the treaty itself, require an
additional specific act of ratification or declaration by a State
party recognizing the competence of the expert body to receive
and consider communications. While the reporting procedure
provides a forum for a constructive dialogue between a State
party and an independent group of experts to monitor, in a
non-adversarial manner, overall compliance with international
treaty obligations based on a report submitted by the State
party, an individual communications procedure provides the
possibility for redress in specific cases.
A. Treaty-based communications procedures
12. At present, four major United Nations human rights
treaties provide for the competence of the supervisory body to
receive and consider communications alleging violations of rights
protected by the respective instrument. These are: the
International Covenant on Civil and Political Rights (ICCPR) in
its first Optional Protocol (OP), the International Convention on
the Elimination of All Forms of Racial Discrimination (CERD) in
its article 14, the Convention against Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment (CAT) in its
article 22, and the International Convention on the Protection of
the Rights of All Migrant Workers and Members of Their Families
(MWC) in its article 77. Although the Migrant Workers Convention
has not yet entered into force, a discussion of the provisions of
its article 77 on the right to petition is included in the
present comparative summary.
13. In accordance with the optional nature of these
procedures, a State party to the main instrument has the option,
through a separate act of ratification or declaration, to
recognize the competence of the treaty body to receive and
consider communications from individuals or groups. Compared
with the number of overall ratifications to the main instrument,
at present a smaller number of States have ratified the first
Optional Protocol to ICCPR or recognized the competence of the
expert body to receive such communications under CAT and CERD.
14. The status of ratification/acceptance as of 1 September
1996 is as follows:
ICCPR: 135 CERD: 148 CAT: 99 OP: 89
Article 14: 23 Article 22: 36
15. The Convention against Torture is currently the only
international human rights instrument which also has an inquiry
procedure. Contrary to the communications procedure of article
22 which requires ratification by the State party to establish
the competence of the treaty body to receive and consider
communications, a State party may, at the time of ratification of
the Convention itself, declare that it does not recognize the
competence of the Committee to conduct such an inquiry as
provided for under article 20 of the Convention (the so-called
"opt out" provision). If no such declaration of non- recognition
has been made, the Committee may initiate the inquiry procedure
if it receives information indicating that torture is being
systematically practised in the territory of a State party.
16. In substantive terms, communications procedures available
under international human rights instruments cover the rights set
forth in the individual instrument. According to the general
non-discrimination clause of article 2.1 of ICCPR, States parties
are under the obligation to respect and ensure the rights set
forth in the Covenant to all individuals, without distinction on
a number of grounds, including sex. Consequently, the first
Optional Protocol provides an opportunity for both women and men
to submit communications on alleged violations of their rights
protected under the Covenant. Although neither CERD nor CAT
mention specifically that the rights covered in them extend
without distinction on the basis of sex, their applicability to
both women and men is without doubt.
17. The Committee on Economic, Social and Cultural Rights has
been considering the preparation of an optional protocol to the
Covenant since 1991. The Committee held a day of general
discussion on an optional protocol during its fourteenth session,
in May 1996, and considered the matter further at its fifteenth
session, in November/December 1996, with a view to submitting a
recommendation concerning an optional protocol on a right to
petition to the Commission on Human Rights at its fifty-third
18. In the following section, the individual communications
procedures under ICCPR, CERD, CAT and MWC are summarized. This
is followed by a summary of the inquiry procedure under CAT. The
treaty bodies have adopted their own rules of procedure in
accordance with their respective instruments, further detailing
their methods of work. Except for MWC, which has not yet entered
into force and with respect to which there are as yet no rules of
procedure, the rules of procedure of the treaty bodies are
referred to, as appropriate, in the summary.
1. Admissibility criteria
19. The first stage after a communication is submitted to a
treaty body is the determination of its admissibility. Each of
the procedures under review contain a number of formal
admissibility criteria which must be fulfilled in order to enable
the expert body to receive and consider a communication. If any
of these criteria is not met or remedied, a communication is
declared inadmissible on procedural grounds and no consideration
of the merits occurs. The admissibility criteria are contained
largely in articles 1, 2, 3 and 5.2 of OP; articles 14.1, 14.6
(a) and 14.7 (a) of CERD; articles 22.1, 22.2 and 22.5 of CAT;
and articles 77.1, 77.2 and 77.3 of MWC.
(a) Requirement of ratification or declaration of acceptance
20. A first criterion which determines whether a
communication may be received by a treaty body is the requirement
that a State party to the instrument has ratified or acceded to
the first Optional Protocol, or declared that it recognizes the
competence of the treaty body to receive and consider
communications.8/ Thus, the communications procedures are
strictly optional and are applicable only to States parties which
have expressly accepted them by way of ratification/accession, or
a declaration. All instruments specify that no communication
shall be received by the treaty body if it concerns a State party
which is not a party to the first Optional Protocol, or which has
not made a declaration accepting the treaty body's competence to
receive and consider communications.9/ The ratification of the
first Optional Protocol or declaration of acceptance by a State
party may occur at any time, either at the time of ratification
of the treaty or at any time thereafter.
21. The number of ratifications/accessions, or declarations
of acceptance required for entry into force varies among the
treaties. In the case of OP (art. 9), 10 ratifications are
required. CERD (art. 14.9) and MWC (art. 77.8) require 10
declarations of acceptance. CAT (art. 22.8) requires five
declarations of acceptance.
22. All procedures establish that anonymous communications
shall be inadmissible.10/
(c) Subject-matter of a
23. All procedures under review establish that communications
are admissible only if they claim a violation by the State party
of any of the rights set forth in the instrument.11/ The OP, CAT
and CERD use the formulation "... who claim to be victims of a
violation by that/a State party of any of the rights set forth
in/of the provisions of the Covenant/Convention", whereas MWC
uses a slightly different formulation, namely "... who claim that
their individual rights as established by the present Convention
have been violated by that State party". Thus, any claim of a
violation must fall within the scope of the Covenant or
Convention. Likewise, a communication must claim that the
claimants are "victims of a violation", i.e. that some detriment
has been suffered.
24. Admissibility ratione materiae is also dealt with in the
rules of procedure of the Human Rights Committee regarding the
first Optional Protocol.12/ While some criteria are reiterated
from OP itself, certain aspects are further elaborated. Rule 90
(b) specifies that a claim of a violation must be "sufficiently
substantiated" for the Committee to reach a decision on
admissibility. While the claimant, at this stage of the
procedure, is not required to submit all information concerning
the merits of a case, nevertheless, she or he must sufficiently
substantiate the case to allow the Committee to reach a decision
on the admissibility of the communication.
(d) Jurisdiction (admissibility ratione loci)
25. This criterion establishes the connection which must
exist between the claimant and the State party against which a
communication is brought. All procedures require that the
claimant be subject to the jurisdiction of the State party
concerned. In the case of CERD, the formulation used states that
the claim must be from claimants "within [the] jurisdiction" of
the State party.
(e) Abuse of the right to submit a communication
26. Three instruments, i.e. OP, CAT and MWC, have identical
provisions that a communication shall be considered inadmissible
when the treaty body "considers [it] to be an abuse of the right
of submission of such communications or to be incompatible with
the provisions of the present Covenant/Convention".13/ No
comparable provision is contained in CERD.
(f) Duplication of procedures
27. Two procedures, i.e. CAT and MWC, contain as an
admissibility criterion that "the same matter has not been, and
is not being, examined under another procedure of international
investigation or settlement". Therefore, the same matter cannot
be examined at the same time under more than one international
procedure. Further, the matter may not be brought under CAT or
MWC after having been dealt with by another international
body.14/ In the case of OP, the communication shall not be
considered unless it has been ascertained that the same matter
"is not being" examined under another procedure.15/ This
formulation indicates that only the simultaneous examination of a
case is precluded, and that the Committee is, in principle,
competent to consider cases that have been examined elsewhere.
In fact, the Human Rights Committee has considered a number of
cases previously examined by the European Commission of Human
Rights and subsequently submitted to the Human Rights
Committee.16/, 17/ CERD does not address this element.
(g) Exhaustion of domestic remedies
28. In the case of the four procedures under review, no
communication shall be considered unless the relevant treaty body
has ascertained that the petitioner has "exhausted all available
domestic remedies".18/ In all cases, this is subject to the
exception that it "shall not be the rule where the application of
the remedies is unreasonably prolonged". Additional exceptions
to this general rule are contained in CAT and MWC, providing that
the exhaustion of domestic remedies shall also not be the rule
where the application of domestic remedies "is unlikely to bring
effective relief to that individual/to the person who is the
victim of the violation of this Convention". In the case of MWC,
the exception is further qualified that this shall not be the
rule where, "in the view of the Committee", the application of
the remedies is unreasonably prolonged. The rules of procedure
of the Committee on the Elimination of Racial Discrimination add
that a communication must be submitted, except in case of
exceptional circumstances, within six months after the exhaustion
of all available domestic remedies.19/
29. In the jurisprudence of the Human Rights Committee, the
requirement of the exhaustion of domestic remedies applies only
to the extent that these remedies are available and effective.20/
No time limit for the submission of a communication after the
exhaustion of domestic remedies has been set by the Human Rights
(h) Written nature
30. The OP specifies that individuals fulfilling certain
other admissibility criteria "may submit a written
communication". 21/ None of the other procedures explicitly
addresses the question of the written or non-written nature of a
communication, but the rules of procedure and practice of the
treaty bodies establish their essentially written nature. At the
same time, none of the treaty bodies requires that a
communication be submitted in a specific format.
31. The practice and rules of procedure of the Committee on
the Elimination of Racial Discrimination and the Committee
against Torture indicate that communications need to be submitted
in writing. In the case of the Committee on the Elimination of
Racial Discrimination, rule 85 establishes the summarized format
in which the Secretary-General shall transmit to the Committee
each communication received, and that "the full text [emphasis
added] of any communication brought to the attention of the
Committee shall be made available to any member of the Committee
upon request", which clearly points to the requirement that the
original submission be made in writing. Additional information
from both the petitioner and the State party that might be
requested at different stages of the process are also to be
provided in written form.22
(i) Admissibility ratione temporis
32. The temporal dimension of admissibility addresses the
question of whether communications may be brought concerning
violations which occurred before the entry into force of the
procedure for the State party concerned, or concerning violations
which occurred after that date. None of the procedures under
review explicitly addresses this question either in the
provisions of the treaty itself, or in the rules of procedure.
33. While, in practice, the four procedures under review
allow communications only with regard to alleged violations which
have occurred after their entry into force for the State party
concerned, the treaty bodies have also had to deal with
communications regarding so- called continuing violations, i.e.
violations that have started prior to the entry into force of the
procedure, but which continue after that date.
34. The Human Rights Committee has resolved a number of cases
where the temporal dimension of admissibility was an issue. In
general, events that have occurred prior to the entry into force
of OP are inadmissible. If a communication concerns an event
prior to the entry into force of the procedure, then the
communication is admissible only when the events have had
continued effects which themselves constitute violations of the
Covenant after the entry into force of OP.
35. Most recently, in communication No. 520/1992, the Human
Rights Committee stated: "... the State party's obligations
under the Covenant apply as of the date of its entry into force
for the State party. There is, however, a different issue as to
when the Committee's competence to consider complaints about
alleged violations of the Covenant under the Optional Protocol is
engaged. In its jurisprudence under the Optional Protocol, the
Committee has held that it cannot consider alleged violations of
the Covenant which occurred before the entry into force of the
Optional Protocol for the State party, unless the violations
complained of continue after the entry into force of the Optional
Protocol. A continuing violation is to be interpreted as an
affirmation, after the entry into force of the Optional Protocol,
by act or by clear implication, of the previous violations of the
State party".23/ In communication No. 410/1990, the Committee did
not rule on the question of the admissibility ratione temporis of
a communication concerning a violation that occurred prior to the
entry into force of the Optional Protocol since the State party
conceded the admissibility ratione temporis.24/
(j) Reservations to procedures
36. None of the four procedures under review contains a
provision stating whether reservations to the procedure are
permissible or not. In practice, certain reservations or
declarations have been entered with regard to the first Optional
Protocol and the communications procedures under CERD and CAT.
37. Reservations or declarations entered upon ratification to
the first OP by States parties fall into two categories. First,
a number of States parties have entered reservations or
declarations with regard to article 5.2 (a) of the Optional
Protocol specifying that the Committee shall not consider any
communication concerning a matter which has already been
considered under other procedures of international
investigation.25/ The second category of reservations covers the
temporal dimension of OP. A number of States have entered
reservations or declarations to the extent that they recognize
the competence of the Human Rights Committee to receive and
consider communications resulting from acts occurring after
(emphasis added) the entry into force for the State party of OP,
or from a decision relating to such acts after that date.26/
Reservations or declarations of these two categories have been
viewed by the Human Rights Committee as not violating the object
and purpose of the first Optional Protocol.27/ The Human Rights
Committee insists on its competence when events or acts occurring
before the date of entry into force of the first OP have
continued to have an effect on the rights of a victim subsequent
to that date. Furthermore, the Committee has made it clear that
reservations relating to the required procedures under the first
Optional Protocol would not be compatible with its object and
38. The Human Rights Committee has noted that a reservation
cannot be made to the Covenant through the vehicle of the
39. Furthermore, the Human Rights Committee is prevented from
considering communications under the first Optional Protocol with
regard to articles of the Covenant to which a State party has
entered a permissible reservation upon ratification of or
accession to the Covenant. In that regard, the Committee
declared itself competent to determine whether a reservation is
compatible with the object and purpose of the Covenant and,
consequently, to determine the admissibility of a
40. In declaring recognition of the competence of the
Committee on the Elimination of Racial Discrimination in
accordance with article 14 of CERD, a number of States parties
have put forward reservations or declarations specifying that the
Committee shall not consider any communications unless it has
ascertained that the same matter has not been, and is not being,
examined under another procedure of international investigation
or settlement.31/ Others specify the applicability ratione
temporis of the procedure, i.e. that it is recognized for events,
or decisions thereon, occurring after the entry into force of the
41. In declaring recognition of the competence of the
Committee against Torture under article 22 of CAT, one State
party declared that such competence would cover events occurring
after the adoption of the declaration.33/
(k) Reference to a State party
42. Before declaring a communication admissible, all four
procedures under review establish that any communication is to be
brought to the attention of the State party.34/ CERD puts
forward the requirement that this be done "confidentially", and
that the identity of the individual or groups of individuals
concerned "shall not be revealed without his or their express
consent".35/ So far, no petitioner has requested that his or
their identity should not be revealed to the State party
43. The rules of procedure of the Human Rights Committee, the
Committee on the Elimination of Racial Discrimination and the
Committee against Torture provide that a communication may not be
declared admissible "unless the State party concerned has
received the text of the communication and has been given an
opportunity to furnish information or observations" relevant to
the question of admissibility, notably information relating to
the exhaustion of domestic remedies.36/ To reach a decision on
admissibility, a Committee may request that the author provide
additional information or clarifications relevant to the question
of admissibility.37/ The rules of procedure establish that the
treaty bodies, in the pre- admissibility stage, may set time
limits for the submission of such additional information,
clarifications and observations "with a view to avoiding undue
delay".38/ If deadlines are not kept either by the State party
or by the author, the treaty body may decide the question of
admissibility "in light of available information".39/
44. Standing under a communications procedure determines who
may submit a communication under the instruments under review.
If a complainant does not have standing under the instrument, the
communication will be rejected by the treaty body on formal
grounds, without consideration of the merits. Under the existing
instruments, standing is given to individuals, or to individuals
or groups of individuals.
45. In all cases, the question of standing is linked to the
requirement that a communication may be submitted only by an
individual or group of individuals claiming to be the victim(s)
of a violation of a right protected by the treaty. The
subject(s) of the right to submit a communication, i.e. the
alleged victim(s), may designate a representative for submitting
a communication, i.e. his or her legal counsel or some other
agent representing the alleged victim.
46. Under OP, CAT and MWC, only individuals, i.e. natural
persons, may submit a communication to the respective committees
for consideration.40/ CERD gives standing explicitly also to
groups of individuals.41/ CAT and MWC add that such
communications may be submitted "on behalf of" individuals.
47. The rules of procedure of the Human Rights Committee
further provide that a communication may be submitted by an
individual as well as by individuals, thus clarifying that more
than one individual may join in submitting a communication on the
same matter. The individual herself is not required to submit
the communication: this may be done by a relative or other
designated representative, a formulation which has been held to
encompass an alleged victim's legal counsel or other duly
designated representative. Such authorization can be provided,
for example, in a power of attorney or other documented proof
that the author is authorized to act on behalf of the alleged
victim. The rules of procedure of the Committee against Torture
and the Committee on the Elimination of Racial Discrimination
specify that relatives of the alleged victim fall into the same
category as a designated representative.42/ Failure to provide
proof that the author is authorized to act on behalf of the
alleged victim(s) causes inadmissibility.
48. If it appears that an alleged victim is unable to submit
a communication, the communication may be submitted on her
behalf.43/ In this context, both the Committee against Torture
and the Committee on the Elimination of Racial Discrimination
require specifically that the author of the communication justify
her acting on the victim's behalf.44/ This requirement also
exists for communications under OP, as demonstrated by the Human
Rights Committee's jurisprudence.45/ Failure to provide
justification when acting on behalf of the alleged victim without
due authorization leads to a declaration of inadmissibility.46/
3. Proceedings on the merits
49. The second stage in the consideration of a communication
is the proceedings on the merits of a case. This stage, reached
only after communications have been declared admissible, involves
the Committee, as well as the complainant and the State party
against which a communication has been brought.
50. The decision declaring a communication admissible is
communicated to the State party and to the author of the
complaint.47/ Following such a decision, the State party is
requested to "submit to the Committee written explanations or
statements clarifying the matter and the remedy, if any, that may
have been taken by the State".48/ In the case of communications
under CERD, the State party has three months. In the case of
communications under OP, CAT and MWC, a six-month time limit for
submission of responses by the State party is envisaged.49/
According to their rules of procedure, the Committee on the
Elimination of Racial Discrimination and the Committee against
Torture may indicate, if deemed necessary, the type of
information they wish to receive from the State party
51. The rules of procedure of all three treaty bodies
establish that information submitted by the State party in
accordance with the provisions referred to in paragraph 49 above
is to be transmitted to the author of the communication who may
submit any additional written information or observations within
a time limit specified by the treaty body.51/
52. The consideration of a
communication on the merits occurs "in the light of all
information/written information made available" by the State
party and the complainant.52/ In the practice of the treaty
bodies, all information submitted by the concerned parties in the
context of a specific communication or requested by the treaty
body is to be made available to both parties.53/ All three
treaty bodies may request the State party to take interim
measures to avoid possible irreparable harm to the claimant.54/
53. While the two stages of consideration of a communication,
i.e. admissibility and consideration of the merits, are usually
kept separate, the Human Rights Committee decided in 1995 that it
would join the consideration of these two stages when both
parties consented and the Committee considered it appropriate.55/
Such a joinder may expedite the proceedings of the Committee.
54. Consideration of communications under all procedures
under review takes place in closed meetings.56/
55. All three treaty bodies are competent to reconsider a
decision declaring a communication inadmissible at the written
request of the complainant where such a request provides
additional information relevant to admissibility of the
communication.57/ They also may review or revoke a decision on
admissibility during the proceedings on the merits in the light
of any explanation a State party may provide, and after affording
an opportunity to the complainant to submit additional
4. Working groups and special rapporteurs
56. The rules of procedure of the three treaty bodies provide
for the establishment of working groups to assist the respective
treaty body in expediting its mandate under OP, under article 14
of CERD and under article 22 of CAT.
57. All three treaty bodies have established working groups
for the purpose of making "recommendations to the Committee
regarding the fulfilment of the conditions of admissibility laid
down" in the respective instrument.59/ Once a decision on
admissibility has been taken, the treaty bodies may again refer
the matter to a working group or, in the case of the Human Rights
Committee, to a special rapporteur, for assistance and to make
recommendations to the treaty body.60/ Opinions or views on the
merits of a communication are always adopted by the treaty body
as a whole.61/
58. In each case, working groups are composed of not more
than five members. They elect their officers, develop their
working methods and apply as far as possible the rules of
procedure of the related treaty body.62/
59. In the practice of the Human Rights Committee, its
Working Group on Communications meets for one week immediately
prior to the session of the Committee. It is authorized to adopt
decisions declaring communications admissible when all five
members so agree, otherwise, the matter is referred to the
Committee as a whole. In any case, the Working Group may refer a
decision on admissibility to the Committee as a whole. Decisions
declaring communications inadmissible are to be taken only by the
Committee as a whole, but the Working Group may make
recommendations to the Committee in that respect.63/ The
Committee on the Elimination of Racial Discrimination and the
Committee against Torture have, so far, not set up pre-sessional
working groups for this purpose.
60. The rules of procedure of all three treaty bodies, in
addition to providing for working groups to assist the Committees
in handling communications at the admissibility stage and during
consideration of the merits, allow the treaty body to designate
special rapporteurs from among its members to assist in the
handling of communications.64/ According to the practice of the
Human Rights Committee, its Special Rapporteur on new
communications is called upon to process new communications as
they are received, including between sessions of the Committee.
The duties of the Special Rapporteur include, in particular, the
transmission of new communications to the State party requesting
information or observations relevant to the question of
admissibility. The Special Rapporteur may also issue requests
for interim measures. Furthermore, the Special Rapporteur may
make recommendations to the Committee to declare communications
inadmissible without forwarding them to the State party.65/ The
Committee against Torture appoints a special rapporteur for this
purpose in every new case. The very limited caseload of the
Committee on the Elimination of Racial Discrimination has, so
far, not led to the designation of special rapporteurs to assist
it in the handling of communications.
5. Views and follow-up
61. The third stage in the consideration of a communication
is the adoption by the treaty body of its decision or views on a
complaint. All procedures under review contain a provision that
the treaty body "shall forward its views/its suggestions and
recommendations, if any, to the State Party concerned and to the
individual/petitioner."66/ The treaty bodies, after having made
a finding of a violation of a provision of the instrument,
usually ask the State party to take appropriate steps to remedy
the violation. Depending on the case, these steps might be
limited to recommendations that a State party provide an
"appropriate remedy", or they might be more specific, such as
recommending the review of policies or the repeal of a law, the
payment of compensation, or the prevention of future violations.
62. The rules of procedure of the
Human Rights Committee, the Committee on the Elimination of
Racial Discrimination and the Committee against Torture provide
that any member of the treaty body may request that her
individual concurring or dissenting opinion be appended to the
views of the Committee. Such individual opinions may also be
appended to the Human Rights Committee's decisions declaring
communications inadmissible. Consequently, although a treaty
body may strive to arrive at its decisions by consensus, no
unanimity is required in the adoption of its views on a
communication.67/ In the practice of the Human Rights Committee,
members' concurring or dissenting opinions have been appended to
the Committee's views in specific cases.
63. The last stage in the communications procedure consists
of the follow-up phase. Although not specifically addressed in
the instruments per se, all treaty bodies have developed a
practice of following up on decisions taken with regard to a
specific communication. The rules of procedure of the Committee
on the Elimination of Racial Discrimination establish that "the
State party concerned shall be invited to inform the Committee in
due course of the action it takes in conformity with the
Committee's suggestions and recommendations".68/ Likewise, the
rules of procedure of the Committee against Torture provide that
"the State party concerned shall be invited to inform the
Committee in due course of the action it takes in conformity with
the Committee's views".69/ Depending on the decision, a
Committee may set a time limit for the receipt of information on
action taken by the State party.
64. In 1990, the Human Rights Committee established a
procedure for monitoring the follow-up to its views under article
5.4 of OP. First, the Committee indicates in its decisions a
time limit for the receipt of information with regard to action
taken by the State party in respect of the Committee's views
(usually 90 days). Second, the Committee proceeds with the
creation of a special rapporteur for the follow-up on views.
According to rule 95, the Committee designates a special
rapporteur for the purpose of ascertaining the measures taken by
the State party to give effect to the Committee's views. To that
end, the special rapporteur requests written information from the
State party, and informs the Committee accordingly. The first
follow-up mission by the special rapporteur to a State party was
undertaken in 1995.70/ Any action, or inaction, on the part of
States parties with regard to the Committee's views is reported
in the Committee's annual report. Finally, the Committee has
incorporated into its guidelines for the preparation of reports a
section which requests reporting States, as applicable, to
explain "what action has been taken relating to the communication
concerned. In particular, the State party should indicate what
remedy it has afforded the author of the communication whose
rights the Committee found to have been violated",71/ thus making
follow-up to communications part of the reporting procedure.
65. In order to enhance the impact of its views adopted under
OP, the Human Rights Committee has taken a number of decisions,
including that every form of publicity will be given to follow-up
activities. It also decided to include a separate and highly
prominent section on follow-up activities under OP in its annual
report. In this section, information is included, inter alia, as
to which States parties have, or have not, provided follow-up
information or cooperated with the special rapporteur for the
follow-up on views.72/
66. The annual reports of all three treaty bodies contain
sections on the consideration of communications and action taken
thereon by the treaty body. In addition to a summary of the
communications examined, the reports also contain the texts of
views adopted under the communications procedure, as well as the
texts of any decisions taken to declare a communication
6. Interim measures
67. While the instruments under review do not contain
specific provisions which would empower the relevant treaty body
to request a State party to take interim measures pending its
adoption of final views on a communication, such steps are
foreseen in the rules of procedure of the Human Rights Committee,
the Committee against Torture and the Committee on the
Elimination of Racial Discrimination.
68. In the case of the Human Rights Committee, rule 86
provides that the Committee may, after receipt of a communication
and before adopting its views, request a State party to take
interim measures which "may be desirable to avoid irreparable
damage to the victim of the alleged violation". At the same
time, the State party is advised by the Committee that such a
request for interim measures "does not imply a determination on
the merits of the communication". The Committee has applied this
rule on several occasions, notably in cases involving the death
penalty and where the alleged victim claimed a denial of fair
trial. Specifically, stays of execution have been granted in
this connection.74/ Furthermore, the Committee's rules of
procedure determine that interim measures requested under rule 86
shall not be subject to the rule of confidentiality.75/
69. A similar provision on interim measures is contained in
rule 108.9 of the Committee against Torture. The Committee "may
request the State party to take steps to avoid possible
irreparable damage to the person or persons who claim to be
victim(s) of the alleged violation" and such a request "does not
imply that any decision has been reached on the question of the
admissibility of the communication". This provision has been
applied by the Committee against Torture in cases of asylum
seekers who have faced imminent deportation or expulsion to their
country of origin where they feared being subjected to torture.
70. In the case of the Committee
on the Elimination of Racial Discrimination, rule 94.3 states
that in the course of its consideration of a communication, the
Committee "may inform the State party of its views on the
desirability, because of urgency, of taking interim measures to
avoid possible irreparable damage" to the petitioner. In such an
instance, the Committee advises the State party also that "such
expression of its views on interim measures does not prejudge
either its final opinion on the merits of the communication or
its eventual suggestions and recommendations".
71. The question of confidentiality in the framework of the
communications procedures under review arises at a number of
stages of the process. This is also an issue with regard to
confidentiality inter partes, and vis-a`-vis the public at large.
(a) Anonymity of the communication
72. As discussed above under admissibility criteria, all
procedures require that a communication not be anonymous. Thus,
the identity of the author must be clearly established in the
communication in order to be received by a treaty body.
73. Before declaring a communication admissible, it is
submitted to the State party concerned for its comments. At that
stage, CERD contains the proviso that "the identity of the
individual or group of individuals concerned shall not be
revealed without his or their express consent".76/ So far, no
petitioner has objected to the disclosure of his identity to the
State party concerned.77/ To satisfy the requirement, all
petitioners are, nevertheless, asked to state their consent in
writing before the communication is transmitted to the State
party. On one case, however, the Committee on the Elimination of
Racial Discrimination decided, at the express request of the
petitioner, not to reveal his identity when the opinion in his
case was made public.78/
(b) Examination of communications in closed meetings
74. Three procedures, i.e. OP, CAT and MWC, establish that
"the Committee shall hold closed meetings when examining
communications under the present Protocol/ article".79/ This
provision also extends to any meetings of working groups. No
comparable provision is contained in CERD. Rule 88 of the rules
of procedure of the Committee on the Elimination of Racial
Discrimination establishes, however, that meetings of the
Committee or its working group for the purpose of examining
communications in accordance with article 14 shall be closed.
75. The rules of procedure of all three treaty bodies provide
that the treaty body may issue communique's for the use of the
information media and the general public regarding the activities
of the body at the closed meetings.80/
(c) Confidentiality of documents
76. The rules of procedure of the Human Rights Committee 81/
establish that all documents pertaining to the procedure under
OP, i.e. submissions from the parties and all working documents
of the Committee, a working group or special rapporteur, are
confidential. Any decisions taken by the Committee which are not
of a final nature, such as decisions requesting information or
comments from the parties involved, are also confidential.
Likewise, the parties are under an obligation to maintain the
confidentiality of any non-final decision of the Committee
brought to their attention. While a communication is under
consideration, either with regard to admissibility or during the
proceedings on the merits, the parties are under an obligation to
observe and respect the confidentiality rule concerning all
submissions made by the parties. After the Committee has issued
a final decision, both parties are free to release their own
77. Although not specifically addressed in a rule, the
practice of the Committee on the Elimination of Racial
Discrimination is that all documents pertaining to the work of
the Committee under article 14 (submissions from the parties and
other working documents of the Committee) are confidential.82/
(d) Final decisions of the Committees
78. The texts of the final decisions of the Human Rights
Committee adopted in accordance with article 5.4 of OP are made
public.83/ Decisions declaring a communication inadmissible are
normally made public.84/ Decisions declaring a communication
admissible are not made public. The practice of the Committee on
the Elimination of Racial Discrimination and the Committee
against Torture is the same.
79. All three treaty bodies
include in their annual reports information about their
activities undertaken in the framework of the individual
communications procedures.85/ In practice, the text of all final
decisions of the treaty bodies, i.e. either on admissibility or
on the merits, are reproduced in extenso in the Committees'
80. All instruments specify that the treaty bodies are to
forward their views to the State party and to the petitioner.86/
(e) Identity of the author
81. As communications may not be
anonymous, the identity of the author is known to the respective
treaty body, and is also communicated to the State party when a
Committee seeks the written explanations or clarifications of the
State party before deciding on the admissibility of the
communication, and when a Committee seeks to receive any other
written information for the consideration of the communication on
82. The identity of the author and of the State party are
always indicated in the final decisions on the merits of the
Human Rights Committee. Unless the Committee decides otherwise,
decisions declaring communications inadmissible indicate the
identity of the State party and, as a rule, the identity of the
author(s) in the text made public. Where the Committee decides
otherwise, the State party shall also refrain from disclosing the
identity of the author(s).88/
83. At the request of the author, in the public decision on
the merits concerning communication No. 4/1991 dealt with by the
Committee on the Elimination of Racial Discrimination, the name
of the author was not disclosed at his express request although
the State party had been apprised of it during the course of the
proceedings.89/ In a decision declaring communication No. 5/1994
inadmissible, the Committee on the Elimination of Racial
Discrimination did not disclose the identity of the author
(A/50/18, annex VIII).
8. Participation of representatives
84. The procedure under OP at all stages is exclusively of a
written nature. While the proceedings before the Committee on
the Elimination of Racial Discrimination and the Committee
against Torture are, in general, also of a written nature, the
rules of procedure of the Committee on the Elimination of Racial
Discrimination establish that during the proceedings on the
merits of a communication, "the Committee may invite the presence
of the petitioner or his representative and the presence of
representatives of the State party concerned in order to provide
additional information or to answer questions on the merits of
the communication". 90/ In practice, no such situation has yet
occurred. Similarly, the rules of procedure of the Committee
against Torture elaborate that the Committee "may invite the
author of the communication or his representative and
representatives of the State party concerned to be present at
specified closed meetings of the Committee in order to provide
further clarifications or to answer questions on the merits of
the communication".91/ So far, this has not yet occurred.
9. Information considered
85. In addition to the written or non-written nature of
information considered, the source of information used by a
treaty body in considering a communication needs to be
86. As noted in paragraphs 30, 31 and 84 above, the
procedures under all four instruments are, in general, based on
written information submitted to the treaty bodies by the parties
87. In general, only information provided by the parties
concerned can be used by the Committees in determining
admissibility and in reaching a decision on the merits of a case.
Article 5.1 of OP specifies that the Human Rights Committee shall
consider communications in the light of all written information
"made available to it by the individual and by the State party
concerned". CERD uses a similar formulation, i.e. "in the light
of all information made available to it by the State party
concerned and by the petitioner".92/ Likewise, CAT and MWC
determine that communications shall be considered in the light of
"all information made available to [the Committee] by or on
behalf of the individual and by the State party
88. While all Committees, in their rules of procedure,
provide for a role for the Secretary- General in requesting
clarifications from the author(s) during the admissibility stage
of a communication,94/ the rules of procedure of the Committee on
the Elimination of Racial Discrimination and the Committee
against Torture include an additional provision enabling the
Committees to obtain, through the intermediary of the Secretary-
General, at any time in the course of the examination, from
United Nations bodies or the specialized agencies, any
documentation that may assist in the disposal of the case.95/ In
its views in case No. 13/1993, the Committee against Torture drew
on a number of reports prepared for the Commission on Human
Rights by the Secretary- General, by two of the Commission's
Special Rapporteurs and by one of the Commission's working groups
when concluding that a consistent pattern of gross, flagrant or
mass violations of human rights existed in the country of origin
of the petitioner.96/
89. According to the rules of procedure of the three treaty
bodies, the Secretary-General is requested to maintain a
permanent register of all communications received under each
instrument.97/ These registers serve as a working tool of the
secretariat of the treaty bodies. They help to ensure that all
communications are accounted for and attended to under the
appropriate procedure (e.g., avoiding duplication of
consideration) and permit the compilation of public statistical
data concerning the status of each communication under the
respective procedure. The members of the human rights treaty
bodies concerned are free to consult the registers if they so
wish. The registers are not, however, made accessible to others.
90. ICCPR, CERD and CAT include specific provisions which
require reporting on activities of the relevant treaty bodies
under the communications procedures in their annual reports.98/
While the future committee under MWC would also be requested to
present an annual report "on the implementation of the present
Convention" to the Assembly, 99/ no specific provision is made
with regard to its activities under article 77 of the Convention.
91. The desirability of additional publicity for the
procedure and any decisions taken thereunder is reflected in the
rules of procedure of all three treaty bodies, which provide for
the issuance of communique's addressed to the media and the
general public on the activities of the treaty bodies under the
respective individual communications procedures.100/
12. Caseload and meeting time
92. Since the Human Rights Committee started its work under
OP in 1977, 720 communications concerning 53 States parties have
been registered for its consideration. Since the Committee on
the Elimination of Racial Discrimination started its work under
article 14 of the Convention at its thirtieth session, in 1984, 8
communications concerning 5 States parties have been registered
for its consideration. Since the Committee against Torture
started its work under article 22 of the Convention at its second
session, in 1989, 53 communications concerning 13 States parties
have been registered for its consideration. The status of these
communications is as follows:
HRC CERD CAT
Total number of cases registered 720 8 53
Concluded by views/opinion 239 4 7
Declared inadmissible 224 1 18
Discontinued or withdrawn/suspended 115 0 7
Declared admissible, but not yet concluded 41 0 3
Pending as pre-admissibility stage 101 3 18
Others (on file awaiting further
clarification by the author) several 0 12
Out of the 239 cases on which it adopted views under article 5.4
of the first Optional Protocol, the Human Rights Committee found
181 cases of violations of the Covenant.
93. The treaty bodies allocate a certain number of meetings
of their currently mandated regular annual meeting time for their
work under the first Optional Protocol, under article 14 and
under article 22, respectively. Out of a total of nine weeks'
annual meeting time, the Human Rights Committee allocates on
average 18 to 24 meetings a year to deal with communications
under OP. Its Working Group on Communications, which assists the
Committee in handling communications, meets three times a year
for a total of three weeks annually.
94. The Committee on the Elimination of Racial
Discrimination, of its six weeks' annual meeting time, allocates
on average two to three meetings annually for its work under
article 14. The Committee against Torture allocates on average 8
to 12 meetings annually for consideration of communications under
article 22 out of a total of four weeks' meeting time. So far,
for activities under article 20, 101/ the Committee against
Torture has allocated a total of 52 meetings over a
13. Funding of the work of the treaty bodies
95. Funding for the work of the three treaty bodies under
review, i.e. the Human Rights Committee, the Committee against
Torture and the Committee on the Elimination of Racial
Discrimination, is provided from the regular budget of the United
96. In accordance with article 36 of ICCPR, the
Secretary-General of the United Nations "shall provide for the
necessary staff and facilities for the effective performance of
the functions of the Committee" under the Covenant.
97. The Convention on the Elimination of Racial
Discrimination provides that "States Parties shall be responsible
for the expenses of the members of the Committee while they are
in performance of Committee duties".102/ The Convention against
Torture, in article 18.5, provides that "the States Parties shall
be responsible for expenses incurred in connection with the
holding of meetings of the States Parties and of the Committee,
including reimbursement to the United Nations for any expenses,
such as the cost of staff and facilities, incurred by the United
Nations pursuant to paragraph 3 of [article 18]".103/
98. In accordance with amendments adopted by the States
parties to CERD on 15 January 1992, and the States parties to CAT
on 9 September 1992, as endorsed by the General Assembly in
resolution 47/111, the activities of the Committee on the
Elimination of Racial Discrimination and the Committee against
Torture have been financed under the regular budget of the United
Nations since January 1994. As at 1 September 1996, 17 States
parties of the 86 required for the entry into force of the
amendment to CERD, and 17 States parties of the 45 required for
the entry into force of the amendment to CAT had notified the
Secretary-General that they had accepted the amendments.
14. Composition of the treaty bodies
99. ICCPR in article 28, CAT in article 17, CERD in article 8
and MWC in article 72 provide the criteria for the members of the
treaty bodies. These include that members be persons of high
moral standing, acknowledged impartiality and recognized
competence in the field of human rights. Consideration is to be
given to equitable geographical distribution, the usefulness of
the participation of some persons having legal experience and the
representation of the different forms of civilization as well as
of the principal legal systems.
100. A breakdown by profession of the members of the Human
Rights Committee shows that it currently consists of 17 lawyers,
including law professors and judges, and one political scientist.
The Committee against Torture consists of 9 lawyers and one
medical doctor, expert in the treatment of victims of torture.
About half of the membership of the Committee on the Elimination
of Racial Discrimination are current or retired diplomats, one
third are in some form of legal profession and the remaining
members have a variety of professional backgrounds.
B. Treaty-based inquiry procedures
101. The Convention against Torture is the only
international human rights treaty which currently provides for an
inquiry procedure to be conducted by its treaty body. The
procedure is initiated by the treaty body itself "if the
Committee receives reliable information which appears to it to
contain well- founded indications that torture is being
systematically practised in the territory of a State party".104/
In accordance with the rules of procedure of the Committee,
information which is, or appears to be, submitted for the
Committee's consideration under article 20.1, is brought to the
Committee's attention by the Secretary-General of the United
Nations.105/ This open-ended formulation allows for the
submission of information by individual(s), groups,
non-governmental organizations, or other entities. In practice,
it is primarily non-governmental organizations that submit
information which might initiate an inquiry.
102. A precondition for the Committee's ability to receive
information which could lead to the conduct of such an inquiry is
that the State party in question, at the time of the ratification
of, or accession to the Convention, has not made a reservation
declaring that it does not recognize the competence of the
Committee provided for in article 20. 106/ Such a reservation
may subsequently be withdrawn by the State party at any time.107/
103. On the basis of information received and observations
sought thereon from the State party, "as well as any other
relevant information available to it",108/ the Committee may
decide to proceed with a confidential inquiry. To that end, the
Committee designates one or more members of the Committee to
proceed, and to report to the Committee urgently.109/ If the
Committee embarks on an examination, it seeks the cooperation of
the State party 110/ at all stages of the proceedings. While an
inquiry may also proceed without the cooperation of the State
party, a visit to its territory in the course of such an inquiry
requires the State party's agreement.111/
104. The findings arrived at by the Committee as a whole,
and any comments and suggestions concerning the situation, are
subsequently transmitted to the State party. The Committee has
the possibility of including a summary of the results of its
proceedings in its annual report. Such inclusion is preceded by
consultations with the State party thereon, but the final
decision rests with the Committee.112/
105. The inquiry procedure is confidential at all stages:
the meetings held in the exercise of the Committee's functions
under article 20 are closed; all documents relating to the
proceedings are confidential, as are any hearings which may be
held in the conduct of an inquiry or assistance received during
an inquiry. The only public statement results from the
Committee's decision on the publication of the findings and any
press communique's the Committee may issue concerning proceedings
in accordance with article 20, 113/ as well as the inclusion of a
general summary of activities under article 20 in the Committee's
106. So far, the Committee has allocated on average just
under four meetings to its activities under article 20 at each of
its fourth to sixteenth sessions. It has publicly announced,
after consultations in accordance with article 20.5, the results
of its proceedings relating to its inquiries under article 20 in
two States parties to the Convention.115/
II. CHARTER-BASED PROCEDURES
107. Charter-based procedures, as indicated in paragraphs
9 and 10 above, are established in a decision, usually in a
resolution, of an intergovernmental body defining the mandate or
purpose of the procedure. Two Charter-based procedures, namely
the communications procedure of the Commission on the Status of
Women, and the so-called 1503 procedure of the Commission on
Human Rights, are summarized below.
A. Communications procedure of the Commission on the
Status of Women
108. The basis for this procedure is Economic and Social
Council resolution 76 (V) of 5 August 1947, as amended by Council
resolution 304 (I) (XI) of 14 and 17 July 1950, and reaffirmed by
Council resolutions 1983/27 of 26 May 1983 and 1993/11 of 27 June
1993. These resolutions empower the Commission on the Status of
Women to consider confidential and non- confidential
communications on the status of women in any part of the world.
109. The Commission is authorized to appoint at its annual
sessions a Working Group from among its members, consisting of
five representatives, one from each regional group. The Working
Group considers communications with a view to bringing to the
attention of the Commission those communications, including the
replies from Governments, which appear to reveal a consistent
pattern of reliably attested injustice and discriminatory
practices against women. All communications, confidential as
well as non-confidential, are considered in closed meetings.
110. The admissibility criteria for communications are
taken from resolution 1 (XXIV) of 13 August 1971 of the
Subcommission on Prevention of Discrimination and Protection of
Minorities. Accordingly, any person or group of persons who have
direct and reliable knowledge of those violations, or
non-governmental organizations acting in good faith in accordance
with recognized principles of human rights, not resorting to
politically motivated stands contrary to the provisions of the
Charter of the United Nations and having direct and reliable
knowledge of such violations may submit a communication for
consideration by the Commission. To this is added that such a
communication must refer specifically to women or women's issues,
that it must appear to reveal a consistent pattern of gross and
reliably attested injustice and discriminatory practices against
women and that the reported act or practice of discrimination
against a woman happens solely on the grounds of her being a
woman. Anonymous communications may not be received.
111. The Secretary-General compiles lists of confidential
and non-confidential communications from the information
received. The non- confidential list includes communications
dealing with principles relating to the promotion of women's
rights in the political, economic, civil, social and educational
fields. They do not identify any particular State as the alleged
perpetrator of human rights violations. The confidential list
includes communications alleging violations of women's rights by
States, including patterns of violations in particular countries,
or the identification of a problem facing women in several
112. The Working Group considers all communications before
it, and submits its report to the Commission. The report, based
on the Working Group's analysis of the confidential and non-
confidential communications, may indicate the categories in which
communications are most frequently submitted to the Commission.
113. The Commission is empowered to make recommendations
to the Economic and Social Council on what action should be taken
on emerging trends and patterns of discrimination against women
revealed by communications on the status of women (see Council
resolution 1993/11), but is not authorized to take any action
114. The experience with this procedure was assessed by
the Working Group in 1991. It noted that "while the
communications procedure provided a valuable source of
information on the effects of discrimination on the lives of
women, the current procedure for communications on the status of
women should be improved to make it more efficient and useful"
(E/1991/28, para. 48). The mandate of the Commission was
subsequently reaffirmed by the Council in its resolution 1993/11.
115. At the fortieth session of the Commission, in 1996,
the Commission, in adopting the report of the Working Group,
noted that some recurring trends could be clearly identified,
namely different forms of violence against women and violation of
their human rights, particularly in situations of armed conflict
and war. On previous occasions, the Working Group had identified
violence against women in detention as a matter of concern.
116. The Working Group emphasized that the communications
procedure of the Commission was not sufficient and therefore not
effective. It recommended that the Commission's communications
procedure be further improved. No further recommendations were
submitted to the Economic and Social Council, however, and
therefore no further action was taken either with regard to the
identified trends of consistent patterns of reliably attested
injustice and discriminatory practices against women or with
regard to the functioning of the communications procedure of the
B. 1503 procedure of the Commission on
117. This procedure, established under Economic and Social
Council resolution 1503 (XLVIII) of 27 May 1970, deals with
communications relating to violations of human rights and
fundamental freedoms anywhere in the world. It does not deal
with individual cases, as such, but with situations that affect a
large number of people over a protracted period of time.
118. Lists of communications are compiled by the
Secretary- General, including short descriptions of each case,
and any replies of Governments. The lists are submitted to the
members of the Subcommission on Prevention of Discrimination and
Protection of Minorities, as well as to the members of the
Commission on Human Rights.
119. The Subcommission on Prevention of Discrimination and
Protection of Minorities appoints a five-member working group, to
meet annually for two weeks, immediately before the session of
the Subcommission. This working group, known as the Working
Group on Communications, considers all the communications and
Governments' replies, and selects therefrom situations for the
attention of the Subcommission.
120. A majority of the working group's members is needed
to refer a communication to the Subcommission. No further action
is taken on communications which the working group does not pass
on to the Subcommission. From among the communications submitted
to it, the Subcommission determines those particular situations
it wishes to refer to the Commission on Human Rights, which
appear to reveal a consistent pattern of gross and reliably
attested violations of human rights.
121. A five-member working group of the Commission, known
as the Working Group on Situations, has been appointed annually
since 1974 to examine the material transmitted to the Commission
by the Subcommission, and the observations of Governments. The
Working Group is entrusted with recommending a course of action
to be taken in each case.
122. Subsequently, the Commission may decide that a
particular situation requires thorough study and a report and
recommendations thereon to the Economic and Social Council, or
that a particular situation should be the subject of an
investigation by an ad hoc committee to be appointed by the
Commission. The method of conducting a thorough study has been
applied only once and the method of setting up an ad hoc
investigatory body, with the consent of the Government concerned,
has never been used.
123. Instead of these two alternatives, the Commission on
Human Rights has developed a number of approaches in the
application of the procedure, including discontinuation;
continuing review; continuing review and appointment of an
independent expert to enter into direct contacts with the
Government and people concerned; discontinuation under the
confidential procedure in order to take up the same matter under
the public procedure governed by Council resolution 1235
124. The admissibility criteria for communications are
contained in the provisional procedures adopted by the
Subcommission in its resolution 1 (XXIV). Accordingly, the
objective of the communication must not be inconsistent with the
relevant principles of the Charter of the United Nations, the
Universal Declaration of Human Rights or other applicable
instruments in the field of human rights.117/
125. Communications under the 1503 procedure are
admissible only if there are reasonable grounds to believe that
they may reveal a consistent pattern of gross and reliably
attested violations of human rights and fundamental freedoms; any
replies received from the Governments concerned must be taken
126. Anonymous communications are not admissible under the
rules applicable to the 1503 procedure. The provisional
procedures contain provisions to avoid overlap with other
existing procedures and the repeated submission of communications
already dealt with by United Nations organs. The exhaustion of
domestic remedies is a precondition for consideration of a
communication, unless it appears that such remedies would be
ineffective or unreasonably prolonged. Any failure to exhaust
domestic remedies must be satisfactorily explained. No
communication will be admitted if it has manifestly political
motivations or if its subject is contrary to the provisions of
the Charter of the United Nations.
127. In order to be admitted, the communication must
contain a description of the facts and must indicate the purpose
of the petition as well as the rights that have been violated. A
communication will not be considered if its language is abusive
or if it contains insulting references to the State against which
the complaint is directed. Such communications may, however, be
considered, if they meet other criteria for admissibility, after
deletion of the abusive language.
128. Admissible communications may originate from a person
or group of people who claim to be victims of human rights
violations. They may also be admitted if they are submitted by a
person or group of people having direct, reliable knowledge of
violations. Under the 1503 procedure, non-governmental
organizations may present communications on the condition that
they act in good faith in accordance with recognized principles
of human rights, not resorting to politically motivated stands
contrary to the provisions of the Charter, and with direct,
reliable evidence of the described situation. However, a
communication is inadmissible if it appears that it is based
exclusively on reports disseminated by the mass media.
129. In accordance with Commission decision 3 (XXX) of 6
March 1974, the relevant documents on situations are referred to
the Governments concerned, with the request that they make
written observations thereon in time for the Commission's next
session. This is done once the Subcommission has decided to
refer a situation to the Commission.
130. A Government has the right to be represented and may
participate fully in meetings when the Commission discusses a
situation with which it is concerned, and when its decision is
131. All actions taken under the 1503 procedure remain
confidential unless the Commission reports thereon to the
Economic and Social Council. Until that stage is reached, the
meetings of all bodies involved, i.e. the Commission, the
Subcommission and both working groups, are held in private and
the confidentiality of their records and documents is preserved.
132. Since the procedure started to operate, in 1972,
particular situations in 73 countries have been referred to the
Commission on Human Rights by the Subcommission for examination
under the 1503 procedure. Since 1978, the Chairperson of the
Commission on Human Rights has announced in public session the
names of countries which have been under examination. The
Chairperson makes a distinction between countries where the
Commission continues to keep a human rights situation under
review, and those where it has been decided to take no further
133. The Economic and Social Council sometimes decides -
on its own initiative, after the study of a particular situation
has ended, or on the recommendation of the Commission on Human
Rights - that the confidentiality of material used in conjunction
with a procedure may be removed.
1/ Report of the World Conference on Human Rights, Vienna,
14-25 June 1993 (A/CONF.157/24 (Part I)), chap. III (Vienna
Declaration and Programme of Action), sect. II, para. 40; and
Report of the Fourth World Conference on Women, Beijing, 4-15
September 1995 (A/CONF.177/20 and Add.1), chap. I, resolution 1,
annex II (Platform for Action), para. 230 (k).
2/ This aspect is recognized, particularly in para. 222 of
the Platform for Action, which states: "If the goal of full
realization of human rights for all is to be achieved,
international human rights instruments must be applied in such a
way as to take more clearly into consideration the systematic and
systematic nature of discrimination against women that gender
analysis has clearly indicated." Furthermore, the Platform for
Action, in para. 217, notes a lack of appropriate recourse
mechanisms at the national and international levels, and in
paragraph 219 notes, inter alia, inadequate monitoring of the
violation of the human rights of all women.
3/ See, inter alia, sect. II, para. 37 of the Vienna
Declaration and Programme of Action and para. 221 of the Platform
4/ The following major international human rights instruments
have reporting procedures: International Covenant on Civil and
Political Rights (ICCPR); International Covenant on Economic,
Social and Cultural Rights (ICESCR); International Convention on
the Elimination of All Forms of Racial Discrimination (CERD);
Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW); Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT);
Convention on the Rights of the Child (CRC); and International
Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families (MWC) (not yet in force). On
reporting under international human rights instruments, see, in
general, Manual on Human Rights Reporting (United Nations
publication, Sales No. E.91.XIV.1).
5/ See E/1989/22, annex III; see also HRI/GEN/1/Rev.2.
6/ A current list of thematic and country specific procedures
of the Commission on Human Rights is annexed to the annotations
to the provisional agenda for the fifty-second session of the
Commission (Geneva, 18 March- 26 April 1996)
(E/CN.4/1996/1/Add.1). The functioning of various non-treaty
mechanisms is dealt with in detail in the report of the
Secretary-General (E/CN.4/1994/42), submitted to the Commission
on Human Rights at its fiftieth session.
7/ The reporting obligations are contained in the following
provisions: ICCPR article 40; ICESCR article 16, and article 17
in conjunction with Economic and Social Council resolution
1988/4; CERD article 9; CEDAW article 18; CAT article 19; CRC
article 44; and MWC article 73.
8/ OP art. 1, CAT art. 22.1, CERD art. 14.1 and MWC art.
9/ Last sentence of OP art 1, CAT art. 22.1, CERD art. 14.1
and MWC art. 77.1.
10/ OP art. 3, CAT art. 22.2, CERD art. 14.6 (a) and MWC art.
11/ On the question of standing, see paras. 44-48.
12/ Rule 90 (b). The rules of procedure of the Human Rights
Committee (HRC) are contained in document CCPR/C/3/Rev.3, with
further amendments in document A/49/40, vol. I, annex VI.
13/ OP art. 3, CAT art. 22.2 and MWC art. 77.2.
14/ CAT art. 22.5 (a) and MWC art. 77.3 (a).
15/ OP art. 5.2 (a).
16/ A/49/40, vol. I, para. 402.
17/ The Spanish text of article 5.2 (a) employs different
wording, i.e. the "same matter has not been examined" under other
procedures. This is considered to be an editorial error in the
authentic Spanish text and is disregarded in the application of
18/ OP arts. 2 and 5.2 (b), CAT art. 22.5 (b), CERD art. 14.7
(a) and MWC art. 77.3 (b).
19/ Rule 91 (f), cf. CERD article 14.5, in fine. The rules
of procedure of the Committee on the Elimination of Racial
Discrimination are contained in document CERD/C/35/Rev.3, with
further amendments in document A/48/18, annex V.
20/ See A/49/40, vol. I, paras. 404-406.
21/ OP art. 2.
22/ On the nature of the proceedings on the merits, see
23/ A/49/40, vol. II, annex X, sect. T, para. 6.4.
24/ A/47/40, annex IX, sect. Q, para. 4.
25/ See also para. 27 (duplication of procedures). At least
one reserving State, Austria, refers specifically to the
procedure established by the European Convention for the
Protection of Human Rights and Fundamental Freedoms. Other
States that have entered a reservation to this article on the
same grounds include Denmark, France, Germany, Iceland, Ireland,
Italy, Luxembourg, Malta, Norway, Poland, Romania, the Russian
Federation, Slovenia, Spain and Sweden.
26/ Such declarations or reservations were entered, inter
alia, by Chile, France, Germany, Malta, the Russian Federation
27/ General Comment 24 (52) (CCPR/C/21/Rev.1/Add.6), para.
28/ Ibid., paras. 13 and 14.
29/ Ibid., para. 13.
30/ Ibid., para. 18.
31/ Denmark, Finland, Iceland, Italy, Norway and Sweden.
32/ France and the Russian Federation. As noted in para. 27,
CERD does not contain a provision concerning duplication of
33/ The Russian Federation, specifying the date of 1 October
34/ OP art. 4.1, CAT art. 22.3, CERD art. 14.6 (a) and MWC
35/ CERD art. 14.6 (a).
36/ HRC rule 91.2, CAT rule 108.3 and CERD rule 92.3. The
rules of procedure of the Committee against Torture are contained
in document CAT/C/3/Rev.1, with further amendments in documents
A/50/44, annex VI, and A/51/44, annex VI.
37/ HRC rule 91.1, CAT rule 108.1 and CERD rule 92.1.
38/ CAT rule 108.5; see also HRC rule 91.1 and CERD rule
39/ CAT rule 108.6 and CERD rule 92.6.
40/ OP arts. 1 and 2, CAT art. 22.1 and MWC art. 77.1.
41/ CERD art. 14.1.
42/ CAT rule 107.1 (b) and CERD rule 91 (b).
43/ HRC rule 90 (a) and (b).
44/ CAT rule 107.1 (b) and CERD rule 91 (b).
45/ See, for example, case No. 8/1977, paras. 3 and 6, in
Selected Decisions of the Human Rights Committee under the
Optional Protocol: Second to Sixteenth Sessions (United Nations
publication, Sales No. E.84.XIV.2).
46/ See, for example, communication No. 14/1994 of CAT on the
question of admissibility (A/50/44, annex V, sect. B).
47/ HRC rule 93.1, CAT rule 110.1 and CERD rule 94.1.
48/ OP art. 4.2, CAT art. 22.3, CERD art. 14.6 (b) and MWC
49/ OP art. 4.2, CAT art. 22.3, CERD art. 14.6 (b) and MWC
50/ CAT rule 110.2 and CERD rule 94.2.
51/ HRC rule 93.3, CAT rule 110.4 and CERD rule 94.4.
52/ See also paras. 31, 87 and 88. On the participation of
representatives, see para. 84.
53/ See also CERD rule 94.1 and CAT rule 110.1.
54/ See paras. 67-70 (Interim measures).
55/ See A/50/40, vol. I, para. 494 (communication No.
56/ See para. 74.
57/ HRC rule 92.2, CAT rule 109.2 and CERD rule 93.2.
58/ HRC rule 93.4, CAT rule 110.6 and CERD rule 94.6.
59/ HRC rule 89.1, CAT rule 106.1 and CERD rule 87.1.
60/ HRC rule 94.1, CERD rule 95.1 and CAT rule 111.1.
61/ On individual opinions, see para. 62.
62/ HRC rule 89.2, CAT rule 106.2 and CERD rule 87.2.
63/ See A/50/40, vol. I, para. 493. HRC rule 87.2.
64/ HRC rule 89.3, CAT rule 106.3 and CERD rule 87.3.
65/ See A/50/40, vol. I, para. 492.
66/ OP art. 5.4, CAT art. 22.7, CERD art. 14.7 (b) and MWC
67/ See the report of the Human Rights Committee (A/49/40),
vol. I, para. 388.
68/ CERD rule 95.5. See, for example, communication No.
4/1991, concerning which the Committee invited the State party,
in its next periodic report, to inform it about any action it had
taken with respect to the recommendations made by the Committee
(A/48/18, annex IV, para. 7).
69/ CAT rule 111.5.
70/ See A/50/40, vol. I, paras. 557-562.
71/ See A/50/40, vol. I, annex VII, sect. A, para. 5, and
sect. B, para. 7.
72/ For a summary of the Committee's procedure on follow- up,
see A/49/40, vol. I, paras. 459-468. Further information, and a
country-by- country breakdown regarding follow-up is contained in
A/50/40, vol. I, paras. 544-565.
73/ See the reports of the Human Rights Committee (A/50/40),
vols. I and II; the Committee against Torture (A/50/44); and the
Committee on the Elimination of Racial Discrimination (A/50/18).
See also the rules of procedure of CAT (rule 112) and CERD (rule
74/ See A/49/40, vol. I, paras. 410-411.
75/ Rule 96.2.
76/ CERD article 14.6 (a).
77/ See also para. 42.
78/ Case No. 4/1991, L. K. v. the Netherlands; opinion
adopted on 16 March 1993 (see A/48/18, annex IV).
79/ OP art. 5.3, CAT art. 22.6 and MWC art. 77.6.
80/ HRC rule 83, CAT rule 102 and CERD rule 97.
81/ Rules 96-99.
82/ A/50/18, para. 672.
83/ HRC rule 96.3 (b).
84/ HRC rule 96.3 (a).
85/ See CERD art. 14.8, OP art. 6 and CAT art. 24.
86/ OP art. 5.4, CAT art. 22.7,
CERD art. 14.7 (b) and MWC art. 77.7.
87/ Note the proviso of CERD, paras. 42 and 73 above.
88/ HRC rules 96.3 (a) and 97.2.
89/ A/48/18, annex IV (see also para. 73 above) and A/50/18,
90/ CERD rule 94.5.
91/ CAT rule 110.5.
92/ CERD art. 14.7 (a).
93/ CAT art. 22.4 and MWC art. 77.5. CERD, in article 14.7
(a), has similar provisions. On the participation of the parties
in the proceedings before the Committee, see para. 84.
94/ HRC rules 78 and 80, CAT rules 97 and 99 and CERD rules
82 and 84.
95/ CERD rule 95.2 and CAT rule 111.2.
96/ Case No. 13/1993, Balabou Mutombo v. Switzerland; views
adopted on 27 April 1994 (see A/49/44, annex V, sect. B,
97/ HRC rule 79.2, CAT rule 98.1 and CERD rule 83.1.
98/ OP art. 6, CAT art. 24 and CERD art. 14.8.
99/ MWC, art. 74.7.
100/ HRC rule 83, CAT rule 102 and CERD rule 97.
101/ See paras. 102-107.
102/ CERD art. 8.6.
103/ In paragraph 3 of article 18, the Secretary-General of
the United Nations is requested to provide the necessary staff
and facilities for the effective performance of the functions of
the Committee under the Convention.
104/ CAT art. 20.1.
105/ CAT rule 69.
106/ CAT art. 28.1.
107/ CAT art. 28.2.
108/ CAT art. 20.2.
110/ CAT art. 20.1.
111/ CAT arts. 20.3 and 20.5.
112/ CAT art. 20.5.
113/ CAT art. 20.5; rules 72-74, 81, 82 and 84.
114/ See A/50/44, paras. 183-188.
115/ See A/48/44/Add.1 and A/51/44, paras. 180-222; see also
A/50/44, para. 188.
116/ See E/CN.4/1994/42, para. 74.
117/ See also E/CN.4/1994/42, in particular paras. 82-84.
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