Statement of the United States of America
On the Proposed Complaint Procedure

Delivered by Jeffrey D. Kovar
Legal Adviser

Geneva,
December 6, 2006

Thank you Mr. Chairman.

The United States is pleased to join everyone in expressing our appreciation to the Facilitator, Ambassador Godet, for his efforts in organizing our common work.  The Facilitator’s preliminary conclusions provide a useful outline of the issues addressed in the working group, and those which we will continue to consider. 

We have heard widespread agreement that the current 1503 procedure works in a satisfactory way to address gross and systematic violations that have not been resolved through domestic procedures.  The U.S. view is that we must start with the presumption that the current system should not be changed unless a compelling need is established.  The current complaints mechanism plays a vital role, and does so quite well.

Two basic admissibility criteria have existed since the procedure was created in 1970, and they must remain unchanged: 

• that there be a “consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms”;
  
  
• and that “domestic remedies must have been exhausted before a communication is considered - unless it can be shown convincingly that solutions at the national level would be ineffective or that they would extend over an unreasonable length of time.” 

While the Facilitator’s preliminary conclusions preserve these critical elements, the outline buries the highly-important exhaustion requirement among more discretionary elements.  This must be clarified in future drafts. 

The U.S. has proposed that the Secretariat perform a more robust technical screening-out of inadmissible complaints together with a single working group of government experts to review the remaining cases.  We hope this proposal will be favorably considered. 

However, even if the Council would choose to maintain the current structure of two working groups, it is essential that the second-stage government expert working group be clearly empowered to reject complaints that do not meet the admissibility criteria.  We do not agree with suggestions that the second working group could only look at possible measures. 

Our experience with the current system (and we have heard this echoed by many other delegations) is that inadmissible complaints do find their way to the current Working Group on Situations, which dismisses them on that ground.  That check must be maintained.

We will have many other technical issues to raise in future working group sessions led by the Facilitator.  Let me here simply note two points. 

First, we do not think that the complaint mechanism should be formally linked to the UPR mechanism.  All serious human rights violations need not be routed through the UPR mechanism. 

And second, we think calls for the complaint mechanism to be an “early warning system” miss the fundamental point that 1503 is a mechanism to deal with serious and systematic violations after domestic remedies have proved ineffective.  By its nature it is intended to deal with stubborn and systemic problems, not newly emerging ones.

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