October 27, 2010
Open-ended Working Group, Human Rights Council 2011 Review
Item 4.3, Advisory Committee and Complaint Procedure
Statement by the delegation of the United States
Thank you, Mr. President.
UN General Assembly resolution 60/251 provides that the Council shall “maintain…a complaint procedure.” HRC 5/1 paragraph 85 establishes a complaint procedure to “address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances.” In theory, the complaint procedure is a place where victims turn to seek redress for human rights abuses. In practice, the complaints procedure has fallen short of that goal. The individual complaints procedure is often criticized as slow, nontransparent, unresponsive, and ineffective in addressing claims by individuals who have suffered such violations.
The United States believes it is important for victims to be able to seek redress through an individual complaint procedure. However, such a mechanism must be effective. This review process should improve the functioning of this procedure. The United States will actively consider proposals put forth by others and we offer the following concrete proposals.
• One: The Council must clarify what is meant in OP 87(f) of HRC 5/1, which provides that, in order for a complaint to be admissible, it must not “refer to a case… already being dealt with by a special procedure, a treaty body or another United Nations or similar regional complaints procedure in the field of human rights.” This rule of non-duplication applies to other specific complaint mechanisms of international organizations and not to public consideration of human rights situations by the Human Rights Council. The fact that the Council is considering a specific case under the confidential individual complaint procedure does not prevent the Council or the Special Procedures from addressing publicly a situation involving the same country that is the subject of the specific complaint. Similarly, the fact that the Council is considering publicly a situation concerning a country, does not prevent it from taking up an individual complaint under the confidential procedure.
• Two: We should propose that the Working Group on Communications more effectively filter complaints by applying stricter scrutiny of admissibility criteria, so that the Working Group forwards to states for reply only serious and well-supported complaints. This modification would allow the Working Groups and Council to focus on individual cases that merit the Council’s attention and make the Council’s work more relevant to individual complaints and therefore more relevant to victims. The following criteria from OPs 85 and 87 in particular could be applied more strictly:
- The objective of complaint procedure “to address consistent patterns of gross and reliably attested violations of…human rights and fundamental freedoms” “Consistent pattern” requires more than an individual or isolated incident and would focus the Working Group and Council on systemic or structural human rights problems. “Gross violation” requires allegation of facts amounting to a serious infringement of the Universal Declaration of Human Rights or other applicable human rights instrument,
- A communication must be “reliably attested” and contain “a factual description of the alleged violations” based on “direct and reliable knowledge” or “clear evidence;” and “domestic remedies have been exhausted.”
More expertise on the Working Group on Communications could allow it to conduct a more thorough investigation into the exhaustion of domestic remedies. With better screening and more substantial and bona fide complaints forwarded to a Government for a reply, States will be expected to fully engage in the process: to take complaints more seriously and develop a greater capacity to respond to each complaint in a thorough, timely, and transparent manner.
• Three: To increase transparency, we propose that the Council make the complaint procedure public at an earlier stage. There are several options regarding when in the procedure complaints could be made public. This could be done automatically if States fail to respond after a certain delay or if the reply is considered by the Working Group on Communications to be wholly formalistic and non-responsive. Alternatively, the Working Group on Communications could decide to make the complaint public once it has considered a complaint admissible and advanced the complaint to the Working Group on Situations. Another option is to make a case public after the Working Group on Situations has advanced a complaint to the Human Rights Council: the complaint can be made public while the Council is considering the complaint in open proceedings and determining its appropriate disposition.
• Four: We propose that the Working Groups compile for the HRC a complete report of all the cases considered under the complaint procedure and forwarded to a State for a response, including the cases dismissed or discontinued, or kept under review by the WG on Communications. The basis for decision making must also be set out in the report. The Report should also include an Appendix listing all complaints deemed inadmissible prior to engaging a State, including the State involved and the unmet criteria (e.g. failure to exhaust, facts do not amount to a violation, not reliably attested).
The Advisory Committee is regrettably an expensive, duplicative effort, whose meetings, debates, and reports cover topics already covered more exhaustively by other mechanisms. Moreover, state sponsorship of Advisory Committee members, based on regional balance with no contested elections, has led to Committee discussions that mirror the debates that occur within the Council itself. This setup offers too little value added on the topics it considers. With 10 days of meetings per year for 18 people, the Advisory Committee is a costly endeavor for its limited value.
While the Advisory Committee has at times offered constructive advice, and many of the Advisory Committee members do work in good faith, on the whole the Advisory Committee has not met expectations or justified the resources given to it. The United States therefore proposes abolishing the Advisory Committee. Because the Council is tasked to maintain some system of expert advice, per resolution 60/251, the Council may be better served with ad hoc expert advice based on specific requirements, applying qualification criteria similar to that used in the appointment of Special Procedures. We will carefully consider proposals along those lines.