OVERALL VIEW
Concepts of individual petition
A petition is generally understood as a formal request made to an authority, typically a government official or public entity, and is often presented in writing with multiple signatures While petitions can be oral, they are increasingly shared online in today's digital age Legally, a petition refers to a request submitted to a court or administrative tribunal seeking relief, such as a court order Additionally, within the context of the United Nations, a petition may also be referred to as a complaint or communication.
An individual petition, also known as an individual complaint, refers to a formal request made by a single person This concept extends to encompass complaints from various non-state entities, including individuals and non-governmental organizations.
The right to petition is a fundamental human right that must be recognized and safeguarded, allowing individuals, groups, and corporations to seek justice from their government or international entities without fear of retribution Often overshadowed by more prominent freedoms, this essential right underpins many other civil liberties, making it crucial for the functioning of a democracy.
The term "petition" refers to a formal request, which is not explicitly defined in the Universal Declaration of Human Rights However, it is closely associated with the freedoms of assembly and the right to participate in government.
Individuals whose human rights have been violated, often by their own government, have the right to present their cases to international organizations and their bodies, provided that the state is a member or a party to relevant international treaties.
1.2 Individual petition mechanism within international human rights system
The individual petition mechanism is a crucial component of international human rights supervision, consisting of regulations, bodies, and operational measures that facilitate the right to file individual complaints This mechanism serves as the third layer of human rights monitoring, alongside report systems and inter-State complaints, as well as other methods like rapporteurs and special investigators Individuals can submit petitions either through court-like processes or by reporting to independent bodies, ensuring that their grievances are addressed within established procedures for the protection of human rights.
The international human rights mechanism comprises a network of entities responsible for overseeing and promoting the realization of human rights globally At the international level, this system is mandated by the United Nations.
3 The right to petition definition,
4 Rhona K.M Smith, “monitoring, implementing, and enforcing human rights”, Text book on International
The Council of Europe, alongside the United Nations, represents a highly effective international human rights system, particularly through its individual petition mechanism This regional approach enhances the protection and promotion of international human rights by allowing individuals to file complaints, thereby reinforcing the global commitment to human rights advocacy.
At the regional level, key judicial bodies such as the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court of Human Rights play a significant role, as their decisions are binding on states to varying degrees In contrast, the United Nations operates primarily through treaty committees and charter-based bodies, which issue recommendations rather than enforceable rulings.
The individual complaint mechanism at the international level is more complex than national petitions, as it is optional and only applies to states that have ratified treaties or accepted judicial bodies' competence This sensitivity stems from the delicate nature of human rights issues, which directly impact national sovereignty and territorial integrity Historically, the treatment of citizens by their governments was viewed as an internal matter, with international intervention being uncommon While it is typical for states to confront each other in international tribunals, individuals challenging states in judicial bodies remains rare Nevertheless, the individual petition mechanisms established by the UN and regional systems, such as the Council of Europe, over the past 50 years have increasingly affirmed the respect for individual freedoms.
The recognition of individual petition in international human rights
2.1 Individual petition in the evolution of international human rights
The evolution of international human rights gained significant momentum after World War II, particularly in response to the Holocaust and the atrocities committed by the Nazis This dark chapter in history heightened global awareness of human rights and fundamental freedoms Consequently, the nations of the world recognized the importance of promoting these rights, leading to their inclusion as a primary objective of the United Nations, which was established in the aftermath of the war Since then, international human rights have advanced considerably across various dimensions.
Numerous human rights instruments have been adopted at international, regional, and national levels, with the most notable being the international Bill of Human Rights established by the UN This includes the UN Charter, the Universal Declaration of Human Rights, the two 1966 covenants, and five additional conventions, totaling over 60 significant declarations, conventions, and protocols The human rights revolution has influenced various regions and nations, leading to the creation of regional treaties and national laws aimed at enforcing human rights An increasing number of countries are ratifying international human rights treaties, reflecting a growing acceptance of legal obligations to uphold human rights globally.
Numerous human rights supervision and protection mechanisms exist globally, ensuring individuals have access to basic rights and fundamental freedoms Since their establishment, these systems, including the UN human rights mechanism and regional frameworks in Europe, the Americas, and Africa, have significantly advanced operational reforms to enhance their effectiveness in safeguarding human rights.
To enhance the monitoring, implementation, and enforcement of human rights objectives and international obligations, a comprehensive system of measures has been established, including reporting systems and inter-state complaint provisions A significant development in this area is the individual complaint mechanism, which allows individuals to petition for their rights, marking a pivotal moment in the evolution of international human rights This is further reinforced by the increasing trend of judicialization, where numerous human rights courts are now equipped to handle both state complaints and individual petitions, thereby imposing greater legal obligations on states regarding human rights.
The evolution of human rights has significantly benefited individuals across all ages and social backgrounds, including those who have committed crimes Today, everyone enjoys fundamental freedoms and basic rights, allowing them to advocate for justice without the fear of retribution.
2.2 Individual petition in International human rights Law
Currently, there is no specific international human rights legal document addressing individual petitions; however, the right to petition and the individual complaint mechanism are acknowledged in international human rights law through various conventions and treaties at both universal and regional levels This section provides an overview of the legal basis for individual petitions, while the measures and procedures for implementation will be discussed in the following chapters of this thesis.
2.2.1 In the UN human rights instruments
Although the UN Charter and the Universal Declaration of Human Rights (UDHR) do not explicitly mention individual petitions, they have established a foundational legal framework for subsequent human rights documents The UN Charter emphasizes the importance of promoting and respecting human rights for all individuals, regardless of race, sex, language, or religion Key principles from the UDHR, including non-discrimination, civil and political rights, as well as economic, social, and cultural rights, have been integrated into various international conventions focused on specific rights.
The UN human rights framework comprises seven key treaties, five of which empower their respective committees to address individual complaints regarding rights violations by state parties These treaties include the International Covenant on Civil and Political Rights with its First Optional Protocol, the International Convention on the Elimination of All Forms of Racial Discrimination (Article 14), the Convention on the Elimination of All Forms of Discrimination Against Women and its Optional Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 22), and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (Article 77, which is not yet in force).
Besides, individual petition within the UN is also accepted through special procedures established by the Commission on Human Rights or
The Human Rights Council operates under the 1503 procedure established by the Economic and Social Council (ECOSOC) resolution 1503, which differs from traditional committee procedures This approach allows for individual petitions without the need for member nations' consent, focusing on consistent patterns of serious human rights violations that are reliably documented However, it is important to note that the outcomes of this procedure are not legally binding.
2.2.2 In regional human rights instruments
In addition to global human rights instruments, Europe, America, and Africa have developed their own regional human rights frameworks, complete with supporting mechanisms such as multilateral commissions and courts.
The three key human rights instruments today are the European Convention on Human Rights and Fundamental Freedoms (1950) with its additional protocols, the American Convention on Human Rights (1969), and the African Charter on Human and People’s Rights (1981) These instruments represent significant milestones in the protection and promotion of human rights, highlighting the strong collaboration among nations in addressing human rights challenges within their regions.
Regional human rights systems, supported by comprehensive legal documents and effective monitoring mechanisms, demonstrate their superiority over international systems in upholding fundamental rights outlined in conventions, particularly regarding individual petitions These documents explicitly recognize the right to petition commissions and affirm the authority of human rights courts to accept communications from individuals.
The European human rights system, the oldest and most developed regional mechanism, features a judicial process for individual complaints Human rights are a significant focus in Europe, institutionalized through key organizations such as the Council of Europe, the European Union, and the Organization for Security and Cooperation in Europe The Council of Europe leads in the protection and promotion of human rights, being the first international court that allows individuals automatic standing This thesis highlights the Council of Europe as a prime example of a regional individual petition mechanism, which will be further explored in Chapter 3.
INDIVIDUAL PETITION MACHANISM WITHIN THE
A brief overview of the UN human rights bodies
The United Nations plays a crucial role in the protection of human rights through various bodies; however, the primary focus on human rights is concentrated within a few key organizations in its straightforward organizational structure.
The UN Human rights bodies are divided into 2 sub-systems:
The charter-based bodies system includes the Human Rights Council, established by the General Assembly on March 15, 2006, replacing the former Commission on Human Rights It also encompasses the Sub-Commission for the Promotion and Protection of Human Rights, the Office of the High Commissioner for Human Rights (OHCHR), and Special Procedures Operating under the United Nations High Commissioner for Human Rights in Geneva, the Human Rights Council plays an increasingly vital role, alongside the Sub-Commission, Country and Thematic Rapporteurs, and various Working Groups that report to it.
The Treaty-based bodies system consists of seven supervisory committees established under the principal UN human rights treaties, including the Human Rights Committee (HRC), Committee on Economic, Social and Cultural Rights (CESCR), Committee on the Elimination of Racial Discrimination (CERD), Committee on the Elimination of Discrimination Against Women (CEDAW), Committee Against Torture (CAT), Committee on the Rights of the Child (CRC), and Committee on Migrant Workers (CMW) Each committee is made up of independent experts who review reports submitted by signatory nations, address complaints regarding human rights violations, and collaborate with the Economic and Social Council and the UN General Assembly.
The principal organs of the United Nations, including the Security Council, General Assembly and its Third Committee, Economic and Social Council, and the International Court of Justice, play a crucial role in the protection and promotion of human rights globally.
This article offers a general overview of UN human rights bodies, focusing on their individual petition procedures, which will be elaborated upon in the following section.
2 Individual petition under Charter-based bodies
Charter-based bodies have implemented procedures to address human rights violations, allowing designated entities to receive and respond to individual complaints Initially, the UN maintained that it could not address individual cases or specific allegations of human rights abuses in certain countries However, since the 1960s, a network of procedures has gradually evolved within its human rights bodies, utilizing both reporting systems and direct responses to address these issues.
5 See more in the website of the Office of the High Commissioner for Human Rights,
Individual petition under the Charter-based bodies
"Special procedures" refer to the mechanisms created by the Commission on Human Rights, now under the Human Rights Council, to tackle specific country situations or thematic issues globally Presently, there are 29 thematic special procedures in place.
9 country mandates 6 The Office of the High Commissioner for Human Rights provides these mechanisms with personnel, logistical and research assistance to support them in the discharge of their mandates
Special procedures' mandates require holders to assess and report on human rights conditions in designated countries or address global human rights violations through thematic mandates These procedures involve various activities such as addressing individual complaints, conducting research, offering technical cooperation advice, and promoting human rights awareness.
Special procedures are either an individual (called "Special Rapporteur", "Special Representative of the Secretary-General",
"Representative of the Secretary-General" or "Independent Expert") or a
6 Office of the United Nations High Commissioner for Human Rights, Special procedures of the Human Rights Council, United Nations Special Procedures facts and figures 2007
The working group consists of five members, each representing a different region The mandates for the special procedures are defined by the resolution that establishes them Mandate-holders serve in a personal capacity without receiving salaries or financial compensation, ensuring their independence is vital for performing their duties impartially.
Special Procedures play a crucial role in addressing human rights violations by gathering information on specific allegations and issuing urgent appeals or letters of allegation to governments for clarification In 2006, over 1,100 communications were dispatched to governments across 143 countries, with 48% of these being joint communications involving multiple mandate holders.
The Commission’s Special Procedures allow for individual complaints regarding overall human rights violations in a country (country mechanism) or specific types of violations globally (thematic mechanism) Petitions can be submitted to rapporteurs or working groups while they address particular human rights issues A key advantage of this procedure is its ability to investigate situations in any country, regardless of treaty ratification Additionally, Special Procedures can respond swiftly to urgent cases, a capability often lacking in treaty bodies The decision to engage with a government rests with the special procedure mandate holder, based on established criteria, including the reliability of the source and the credibility of the information provided.
7 Ibid United Nations Special Procedures facts and figures 2007
The Human Rights Council adopted the Code of Conduct for special procedures mandate-holders through Resolution 5/2 on June 18, 2007, aimed at enhancing the effectiveness of special procedures by outlining ethical behavior and professional conduct standards It is crucial to note that the criteria and procedures for addressing individual complaints differ, necessitating the submission of communications in accordance with the specific requirements set by each special procedure.
The following minimum information must be provided for all special procedures in order for the communication to be assessed:
Identification of the alleged victim(s);
Identification of the alleged perpetrators of the violation;
Identification of the person(s) or organization(s) submitting the communication (this information will be kept confidential);
Date and place of incident
A detailed description of the circumstances of the incident in which the alleged violation occurred
Before the 1503 procedure was set up, ECOSOC had established the
The 1235 procedure, established by Resolution 1235 in 1967, enables the UN Commission on Human Rights to conduct public debates on severe violations of human rights and fundamental freedoms This includes addressing issues related to racial discrimination, segregation, and apartheid in various states, including colonial and dependent territories and peoples.
The 1235 resolution empowers the Commission to investigate significant and systematic human rights violations and fundamental freedoms It allows for an in-depth examination of ongoing human rights abuses and facilitates the study of specific situations or individual cases brought up during the annual debate.
The 1235 procedure is typically triggered only after significant bloodshed or unrest, highlighting its reactive nature, often applied at a later stage when situations have escalated Unlike the 1503 procedure, there are no admissibility criteria for the 1235, which further emphasizes its role in addressing serious crises.
Individual petition is not stipulated under the 1235 procedure. However, it can be seen as the destination of an individual complaint to the
The 1503 procedure allows the Commission to transfer cases to the 1235 procedure, making them public and enabling a comprehensive study, along with a report and recommendations to ECOSOC However, the Council's role in this process has been notably limited.
In 1947, the Human Rights Commission stated it lacked the authority to address individual complaints; however, significant advancements have been achieved since then The adoption of Resolution 1503 by ECOSOC in 1970 established the 1503 procedure, which acknowledged the right to individual petitions within the Commission's framework.
The 1503 complaint procedure is a confidential process designed to evaluate communications from individuals and private groups regarding significant human rights violations It specifically targets large-scale or systematic abuses, rather than individual cases, requiring that complaints demonstrate a consistent pattern of gross violations However, individual cases may be considered if they reflect broader, systemic issues within a country This procedure has been recently updated by ECOSOC Resolution 2000/39 to enhance its effectiveness in addressing human rights concerns.
Steps to implement the 1503 procedure
The procedure currently consists of the following four steps:
Firstly, the communication should be sent to OHCHR in Geneva The
The UN Secretariat typically acknowledges receipt of communications but does not engage with the authors The OHCHR filters out those deemed "manifestly ill-founded" and forwards valid communications to the relevant government, which has a minimum of twelve weeks to respond A summary of these communications and responses is compiled into a monthly confidential list The Working Group on Communications of the Sub-Commission, consisting of five members from each of the UN's geographic regions, privately reviews these lists and the full texts of the communications after the annual Sub-Commission session.
9 Resolutions 2000/3 adopted by the Economic and Social Council at its resumed organizational session for
In 2000, the Council established a procedure for addressing communications related to human rights issues If a communication indicates a consistent pattern of serious and well-documented human rights violations, it may be submitted to the full Commission’s Working Group on Situations, along with the Working Group's report and recommendations Additionally, the Working Group has the option to keep the matter under consideration for up to a year.
In the second stage, the Working Group on Situation, composed of member states from the Commission, assesses whether to forward a specific country's situation to the full Commission, keep it pending, or discontinue consideration They also provide recommendations on how to address the situations referred by the Sub-Commission, which the Commission can choose to accept or reject Additionally, the representative of the concerned government has the opportunity to present in a private session before the Commission.
Individual petition under the Treaties-based bodies
The communication must be submitted “within a reasonable time after the exhaustion of the domestic remedies”
The 1503 procedure has significantly advanced the UN's efforts in protecting human rights, impacting at least forty-five countries since its inception in 1972 Notable states examined under this procedure since 2000 include Chile, Kenya, the Maldives, the United Arab Emirates, Zimbabwe, and Vietnam.
3 Individual petition under treaties-based bodies
The UN human rights system includes five bodies that can receive and evaluate communications from individuals claiming human rights violations: the Human Rights Committee (HCR), the Committee for the Elimination of Discrimination against Women (CEDAW), the Committee on the Elimination of Racial Discrimination (CERD), and the Committee against Torture (CAT) While the Committee on Migrant Workers (CMW) is also designated to handle individual petitions, its competence under Article 77 has not yet been activated Consequently, this section will primarily focus on the aforementioned four committees.
While there are some procedural variations between the four mechanisms, their design and operation are very similar These are below some special features of these individual petition mechanisms.
3.1 States against whom a complaint may be lodged
A complaint under one of five treaties can be brought only against a state that satisfies two conditions
First, it must be a party to the treaty in question through ratifying or otherwise accepting it
Signatory states must acknowledge the authority of committees established by relevant treaties to address individual complaints For the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), this recognition occurs when a state becomes a party to the Optional Protocols associated with these treaties In contrast, for the Convention against Torture (CAT) and the International Convention on the Elimination of Racial Discrimination (ICERD), states demonstrate their recognition by making specific declarations under Article 22 of the CAT and Article 14 of the ICERD.
3.2 Who can lodge a complaint to the committees
Individuals asserting that their rights under a covenant or convention have been violated by a State Party can file a petition with the appropriate committee, regardless of their citizenship or residency in that country, as long as they were under the committee's jurisdiction during the alleged violation Additionally, third parties can submit complaints on behalf of individuals, provided they have consent, although there are instances where third parties, such as parents, may file complaints without the victim's consent.
A petition must describe a violation of one of the rights set forth in the relevant treaties
Complaints filed under the 1st Optional Protocol to the ICCPR must assert violations of rights outlined in Parts II and III of the Covenant These rights encompass protection against torture and cruel treatment, the right to life, liberty, and security, the right to a fair trial, and freedoms of expression, thought, religion, and association Additionally, individuals have the right to participate in political life, be free from discrimination, and enjoy equality before the law and equal protection under the law.
Article 5 of the ICERD outlines essential rights, mandating that states ensure equality before the law for all individuals, regardless of race, color, or national or ethnic origin It specifies that various civil, political, economic, social, and cultural rights must be guaranteed without discrimination Together with Article 6, which addresses the right to effective remedies, Article 5 serves as the foundation for the majority of communications submitted under the Convention.
Individuals filing complaints with the CAT must specify violations of rights safeguarded by the Convention, including the right to be free from torture and other forms of cruel, inhuman, or degrading treatment Additionally, complaints should address the right not to be expelled, returned, or extradited to a country where there are substantial grounds for believing that the individual would face danger.
Similarly, individual petitions under the CEDAW Optional Protocol must include a claim of a violation of any rights set forth in the Convention by a state party (Article 2)
To be admitted, individual petitions must meet the formal requirements of admissibility The committees will screen on the claim submitted based on some following criteria 11 :
A valid complaint should encompass crucial details such as the names, addresses, and nationalities of both the victim and the author, along with the jurisdiction representing the victim if applicable It must identify the state involved and specify the articles of the Covenant or Conventions that are claimed to have been violated Furthermore, the complaint should provide a comprehensive account of the events, supported by arguments that substantiate the allegations, including pertinent dates.
The committees will reject any petitions that are anonymous, deemed an abuse of the submission rights, or incompatible with treaty provisions.
To have a petition accepted, it is crucial that all domestic remedies are fully exhausted This means that the complainant must pursue and complete all available legal options within their own State before presenting the case to a Committee Additionally, the petition should detail the specific steps taken to exhaust these domestic remedies.
The same issue has not been reviewed through any other international settlement mechanism To prevent unnecessary duplication at the national level, the Committees will return complaints that have already been addressed by other international procedures.
11 The Office of the High Commissioner on Human Rights Treaty-based procedure to deal with individual petition.
When the Committees receive complaints from individuals, the complaint will be considered through 2 major stages: the “admissibility” stage and the “merits” stage
If a petition is deemed admissible by the relevant Committee, it will forward the communication to the concerned state, requesting information on both admissibility and merits The state has a designated timeframe to respond: six months under the Covenant, CAT, and CEDAW, and three months under ICERD, to provide written explanations or statements addressing the issue and potential remedies During this period, the Committee may also request interim measures from the state to prevent possible irreparable harm to the alleged victim.
During the second stage, Committees review each case in a closed session, although CAT and CERD have never invited parties to attend for clarification They assess the merits of each communication based on information from both the complainant and the state involved The Committee articulates its reasoning for determining whether a violation has occurred under relevant articles and issues a decision on whether the complainant has been victimized by the state This decision, along with views and recommendations for remedies, is communicated to both the complainant and the state The state is then expected to report back to the Committee on the actions taken in response to these recommendations Finally, the Committee’s findings are published in annual reports to the General Assembly.
The Committees review individual petitions in a quasi-judicial manner, meaning their decisions and recommendations are not legally binding Consequently, states are not obligated to implement these recommendations, as they are advisory rather than compulsory Interim measures suggested by the Committees are optional for states, and their primary impact lies in generating diplomatic pressure from the international community through public reports Non-compliance with international human rights standards can harm a state's reputation globally, affecting various aspects such as economic, political, and diplomatic relations.
The UN human rights system's individual petition mechanism operates in a quasi-judicial manner within both Charter-based and Treaties-based bodies However, the decisions made by the Human Rights Council and Treaties’ Committees are merely recommendatory and not legally binding, resulting in a less robust framework compared to regional human rights systems.
Figure 1 Individual petition procedure under the UN Treaties-based bodies 12
12 Catherine Phuong Best practices and complaints follow-up Office of the High Commissioner for HumanRights 11 July 2007
CHAPTER III: INDIVIDUAL PETITION MECHANISM WITHINHUMAN RIGHTS SYSTEM OF THE COUNCIL OF EUROPE.
Introduction of the Council of Europe
The Council of Europe is recognized as the most effective mechanism for the protection and promotion of human rights in Europe, surpassing other entities like the European Union and the Organization for Security and Cooperation in Europe It uniquely features an individual petition mechanism, which is systematically implemented, allowing individuals to seek justice for human rights violations.
Established in 1949 in response to the aftermath of World War II, the Council of Europe is an intergovernmental organization with 46 member countries dedicated to the promotion and protection of human rights Its core objectives include safeguarding human rights, fostering democracy, and upholding the rule of law, while also addressing societal issues such as racism and xenophobia and promoting Europe's cultural identity.
The Council of Europe (CE) has established numerous human rights treaties, with the European Convention on Human Rights and Fundamental Freedoms being the most significant, as it is directly binding in national law The CE's key achievement lies in its sponsorship of this Convention, which allows for individual petitions to be formally recognized and processed through a structured mechanism involving the Committee of Ministers, the European Commission, and the Court of Human Rights.
2 The European Convention on Human Rights and its protocols
The European Convention on Human Rights
The European Convention on Human Rights and Fundamental freedoms was signed in 1950 by members of the CE and took into effect in
1953 This is one of the most successful instruments in International Law for the protection of human rights.
The Convention outlines essential rights and freedoms that Parties commit to uphold for all individuals under their jurisdiction A significant milestone of this Convention is the creation of the European Court of Human Rights, which, alongside the European Commission, serves as the primary international enforcement mechanisms to ensure the effective application of the Convention.
The Convention prioritizes the protection of individuals rather than states, granting individuals the right to petition the Commission and the European Court of Human Rights This Court is unique in Europe, allowing any citizen from the 46 Council of Europe member states to file a complaint directly, thereby serving as a crucial safeguard for human rights, even in nations without a written constitution, such as Britain Citizens in signatory countries can turn to this Strasbourg-based Court if they believe their grievances remain unaddressed by their national courts.
The ability of Convention organs to accept individual petitions relies on the acknowledgment by Parties of the Commission's authority and the Court's jurisdiction The judgments issued by the Court and the decisions made by the Committee of Ministers of the Council of Europe are conclusive and obligatory All Parties involved in a case are required to take necessary actions to adhere to these judgments and decisions, a level of compliance that is rarely observed in the United Nations' individual petition process.
Optional Protocols related to individual petition
Following the establishment of the European Convention on Human Rights, 14 supplementary optional protocols were introduced to enhance fundamental rights and freedoms, including protocols 1, 3, 4, 6, 7, 12, and 13 Additionally, protocols 2, 8, 9, 10, 11, and 14 focused on reforming mechanisms, notably the individual petition mechanism These optional protocols and legal documents are integral to the Convention's framework concerning individual petitions.
Protocol No.9(6 November 1990): affording an applicant the right to refer a case to the Court in certain circumstances
Protocol No.10 (25 March 1992): improving the Convention’s supervision procedures
Protocol No 11, enacted on May 11, 1994, reformed the enforcement mechanisms for rights and liberties under the Convention by establishing a new permanent Court, which replaced the previous European Commission and Court of Human Rights This protocol enhanced the Court's authority, granting it greater powers to address individual petitions effectively.
European Agreement relating to persons participating in proceedings of the European Commission and the Court of Human Rights (6May 1969)
The European on Human Rights and Fundamental Freedoms and its Protocols 32 3 Individual petition procedure through the Convention organs
3 Individual petition procedure through the Convention organs
Before the adoption of Protocol No 11, individual petitions were managed by three key bodies: the European Commission of Human Rights, the European Court of Human Rights, and the Committee of Ministers.
The right of individual petition established by the Convention is not mandatory; it is applicable solely to states that have declared their acceptance of the Commission's authority to receive individual petitions (Article 25) and the Court's jurisdiction (Article 26).
The European Commission of Human Rights
The Commission is composed of representatives from each High Contracting Party, typically one national per state, though this is not obligatory Unlike UN Commission members, they operate in an individual capacity rather than as government delegates The Commission is authorized to address both inter-state complaints and individual petitions.
Under Article 25 of the Convention, the Commission is authorized to accept individual complaints from any person, non-governmental organization, or group claiming to be victims of rights violations by high contracting parties as outlined in the Convention.
The Commission evaluates the admissibility of applications based on Articles 26 and 27, which outline specific conditions An application can only be considered after all domestic remedies have been exhausted, unless such remedies are unavailable or significantly delayed, and must be submitted within six months of the final national decision Additionally, the Commission will reject applications that are anonymous, duplicate previously examined matters, conflict with the Convention's provisions, are manifestly ill-founded, or abuse the right to petition.
If the case is deemed admissible, the Commission will examine the application to establish the facts under Article 28, conducting a judicial hearing where both the individual applicant and the respondent government are represented equally by legal counsel Additionally, the Commission may necessitate an investigation in collaboration with relevant states, which are obligated to consent to such investigations upon ratifying the Convention.
Following the completion of its investigation, Article 28(b) mandates that the Commission seeks a friendly settlement If a settlement is reached, the Commission publishes a report Conversely, if a settlement is not achieved, the Commission prepares a comprehensive report detailing the case, along with its proposals and opinions, which is then submitted to the Committee of Ministers and may also be forwarded to the Court.
The Committee of Ministers of the Council of Europe
The Committee of Ministers, composed of the Foreign Affairs Ministers or their deputies from member states of the Council of Europe, serves primarily as a political body However, it also holds judicial or quasi-judicial responsibilities as established by the Convention In instances where a case is not escalated to the Court of Human Rights, the Committee plays a crucial role in addressing human rights matters.
Committee will decide whether or not a violation has occurred (Article 32) and ask the state concerned to stop its violation.
The Committee lacks the authority to mandate a government to implement remedial actions; however, it can establish a deadline for the state to take necessary measures If the Committee determines that a violation has taken place, it is the responsibility of the respondent government to reach its own conclusions and undertake the required remedial actions within the specified timeframe.
The Committee's decisions are mandatory for contracting parties, allowing it to take punitive actions, including publishing reports on states that violate its rulings Under Article 8 of the Statute of the Council of Europe, the Committee has the authority to expel any member for breaching Article 3, which mandates the respect and protection of human rights This demonstrates that the Committee possesses significant enforcement mechanisms to ensure adherence to its decisions, making it more powerful than the UN Convention's committee.
The European Court of Human Rights (
The Court contains as many judges as the number of members of the
CE, the judges act incomplete independence Before Protocol No.11 was adopted, the jurisdiction of the Court for individual petition was contingent.
Only the Commission or a state that has accepted the Court’s jurisdiction can refer a case to the Court, as individuals cannot submit cases directly (Article 44) Additionally, cases must be filed within three months following the Commission's report to the Committee of Ministers (Articles 32, 47) The Court's jurisdiction is thus defined and limited by these stipulations.
( Article 44, 32, 47,50, 53, 54 of European Convention on Human Rights and Fundamental freedoms are mentioned in this section to all cases concerning the interpretation and application of the Convention submitted to it.
The Court assesses whether the established facts violate rights under the Convention but lacks the authority to mandate remedial actions from the state if a violation is confirmed Nonetheless, Article 50 allows the Court to award "just satisfaction" or damages to an injured party when the national law fails to provide adequate remedies Contracting parties are obligated to comply with the Court's decisions as outlined in Article 53 Additionally, the Court's judgments are forwarded to the Committee of Ministers, responsible for overseeing their implementation (Article 54) It is clear that the Court's capacity for individual petitions was limited until the reforms introduced by Protocol No 11.
Shortcomings of the old mechanism
Since the establishment of the Convention’s organs, individual petitions have steadily increased, surpassing inter-State cases and overwhelming both the Commission and the Court This surge highlights the shortcomings in the operational mechanisms of these bodies, making it challenging to process individual complaints The procedure involves three distinct steps: a quasi-judicial process at the Commission, a judicial process at the Court, and a political process at the Committee, which are not only heterogeneous but also slow to implement Additionally, jurisdictional overlap between the Commission and the Court complicates the process, as both can review individual petitions but may struggle to reach consensus on certain issues Although the Court serves as the primary judicial body, its authority is limited, and its decisions are not binding on the states involved Consequently, the Court faces delays in addressing cases since it can only consider matters referred by the Commission.
The need to address shortcomings and enhance individual rights for self-protection within the Convention for the Protection of Human Rights and Fundamental Freedoms has led to significant reforms in the human rights mechanism and the establishment of individual petition rights under Protocol No 11.
The changes after Protocol No.11
Protocol No 11, which came into force in 1998, restructured the enforcement of rights and liberties under the Convention by establishing a new permanent Court This Court replaced the European Commission of Human Rights and the European Court of Human Rights, becoming the sole authority to supervise the application of the Convention and handle complaints from states, organizations, and individuals The Committee of Ministers transitioned from a judicial role to supervising the execution of the Court's judgments without deciding on the merits of cases The new Court is responsible for directly addressing all alleged violations of rights, judging well-founded petitions, conducting investigations, and securing friendly settlements, thereby expanding its jurisdiction to encompass all issues related to the interpretation and implementation of the Convention and its Protocols.
COMPARISONS AND ASSESSMENTS OF THE TWO MECHANISMS, FACTUAL REFERENCE TO VIETNAM
Assessments and recommendations of the two mechanisms
2 Assessments and recommendations of the two individual petition mechanisms
Recent expert reviews have evaluated the current status of international human rights concerning individual petition mechanisms This section will reference insights from Professors Manfred Nowak and Ann Bayefsky, as outlined in their report "New Challenges to the International Law of Human Rights" presented to the International Law Association Additionally, the author's assessments and recommendations regarding individual petition processes will be included.
The individual petition mechanism, though relatively new in international law, has emerged as a crucial tool for monitoring, implementing, and enforcing human rights at both international and regional levels The UN and CE individual petition procedures have evolved significantly, achieving notable successes as the number of individual cases continues to rise This development underscores the growing importance of individual petitions in advancing human rights protections globally.
CE with the establishment of the first permanent Court of human rights in
1998 has marked a remarkable innovation in promoting individual rights.
The individual petition mechanisms within the European Convention on Human Rights are still evolving, with several shortcomings that need to be addressed for greater effectiveness Professor Manfred Nowak notes that these mechanisms are limited to specific civil and political rights, which restricts individuals from addressing violations of other fundamental human rights, including social, cultural, and economic rights.
The indivisibility and interdependence of human rights highlight the challenge of making individual complaints procedures universally accessible At the international level, these procedures are often optional, limited to a few treaties, and typically result in non-binding decisions from quasi-judicial bodies The complexity of Special procedures and the 1503 procedure further restrict individual access Additionally, a significant challenge for both the UN and the CE mechanisms is their inability to enforce remedies and reparations for victims of human rights violations, as only European and American Courts can provide financial compensation Other forms of reparation, such as rehabilitation for torture victims or criminal prosecution of offenders, depend on the willingness of the respective governments, hindering the effective implementation of individual petitions The next section will explore potential improvements to enhance the individual petition process.
The topic of individual petitions in international human rights is relatively new and has not been extensively researched Therefore, the following recommendations are intended solely as guidance to enhance the strength, effectiveness, and coherence of international individual complaint mechanisms.
The CE human rights system should ensure that the individual petition procedure is accessible for all human rights, including economic, social, and cultural rights as outlined in the European Social Charter, as well as minority rights protected by the European Framework Convention on National Minorities and other relevant human rights treaties.
The establishment of a permanent human rights court, separate from the International Court of Justice, is proposed through a new international treaty that would handle individual and collective complaints regarding human rights treaties ratified by states While achieving unanimous agreement among UN member nations may seem challenging, this proposal warrants consideration by experts and the international community In addition to the two Covenants and four core treaties, the recognition and implementation of individual petitions should extend to other treaties Furthermore, the processes for special procedures and the 1503 procedure need simplification, consolidating the handling of individual petitions under a single organ rather than two separate entities, the OHCHR and the Human Rights Council Additionally, making the ratification of individual petition provisions mandatory upon treaty ratification could serve as a partial solution.
To enhance the examination of individual complaints, it is essential to make the process faster, more transparent, and thoroughly reasoned, with comprehensive follow-ups at both universal and regional levels Professor Bayefsky advocates for reforms such as public hearings and regional briefings with legal experts, though these may be challenging given current financial constraints Notably, the Inter-American and European Courts of Human Rights conduct public sessions for individual petitions, ensuring that decisions are promptly delivered and published Implementing similar practices within the UN human rights system would significantly improve transparency and encourage greater participation.
To effectively enforce human rights, it is crucial for each state to acknowledge their significance and demonstrate commitment by engaging in international mechanisms for the protection and promotion of human rights, including the acceptance of individual petitions to international bodies.
3 Vietnam with the individual petition mechanism in international human rights system
3.1 Vietnam with the individual petition procedure within the UN human rights system
Vietnam's engagement with individual petitions through international organizations is relatively recent Despite ratifying nine treaties and two protocols of the Convention on the Rights of the Child, the country has not yet recognized the competence of treaty committees to handle individual communications related to the five UN treaties that allow for such petitions.
Vietnam with individual petition mechanism in international human
Vietnam has not ratified key international human rights protocols, including the 1st Optional Protocol to the International Covenant on Civil and Political Rights, the Protocol to CEDAW, and the Convention Against Torture (CAT) The country's reluctance to recognize individual petitions within UN treaty bodies may stem from concerns about ceding sovereignty, a hesitation shared by larger nations like the United States and the United Kingdom Additionally, Vietnam's domestic legal framework may not be adequately prepared for such significant changes in its human rights obligations.
Vietnam underwent the 1503 procedure from 1994 to 2000, during which the Commission on Human Rights discontinued the case in 1994 Subsequently, the matter was shifted to the 1235 public procedure, continuing until 2000.
3.2 Vietnam’s perspective of joining the UN individual petition mechanism
Vietnam's stance on accepting individual petition rights under the five UN treaties—ICCPR, CEDAW, CAT, and CMW—has sparked diverse opinions While many advocate for Vietnam's acceptance of these rights, there are notable opponents who present arguments against it.
Many opponents believe that individual petition mechanism under the
UN committees lack effectiveness due to their non-judicial status, which prevents them from awarding damages and results in only non-binding decisions, leaving the practical value of individual petitions ambiguous Additionally, preparing submissions for these petitions can strain public resources, as it incurs significant costs for governments that must exhaust all domestic remedies before approaching the UN This process often serves as a means to explore the legal interpretations of treaty provisions while also subjecting governments to international pressure during the examination of individual petitions.
In recent years, Vietnam has made significant strides in fulfilling its international human rights commitments by ratifying various treaties and adopting domestic legal frameworks By accepting the individual petition right under UN treaties, Vietnam would demonstrate its dedication to international human rights standards, enhancing its reputation as a nation committed to democracy and justice This move would not only protect and promote the basic rights of Vietnamese citizens but also present opportunities and challenges for restructuring and reforming domestic laws in line with international human rights law.
Given the global acceptance of individual petition rights, the Vietnamese government should embrace this trend by reforming domestic laws to facilitate its implementation Since individual petition is a relatively new concept in Vietnam and has not garnered significant attention from scholars, it is crucial for the government and lawmakers to conduct comprehensive research on the potential challenges and advantages of participating in the UN individual complaints mechanism Addressing these issues should be a priority in the coming years.
The international individual petition mechanism, though only half a century old, has played a crucial role in safeguarding and enforcing human rights It represents a significant shift in international law, challenging traditional views that only states are subjects of this law and infringing on national sovereignty Both international and regional individual petition mechanisms have empowered individuals globally to defend themselves against human rights violations by their governments This development enhances public awareness of basic human rights and fundamental freedoms, fostering a culture of accountability and protection.
Exploring the UN and CE individual petition mechanisms reveals both significant achievements and persistent shortcomings While it's premature to conclude that challenges outweigh successes, it is clear that enhancing the effectiveness and accessibility of international individual mechanisms remains essential for all regions and populations National sovereignty continues to dominate state policies, complicating consensus on human rights issues among nations The proposal for an international permanent court on human rights, capable of addressing individual petitions within the UN framework, remains unlikely but highlights the ongoing pursuit of justice, peace, and human rights The future holds potential for transformative change as humanity continues to strive for these ideals.
TS Cao Đức Thái – GS David Kinley Luật quốc tế về quyền con người Nhà xuất bản lý luận chính trị Hà Nội 2005.
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6 Protocol No.11 to the European Convention on Human Rights and Fundamental Freedoms.
7 The 1 st Optional Protocol to the International Covenant on Civil and Political Rights
9 The Universal Declaration on Human Rights.
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2 http://www.allacademic.com/meta/p_mla_apa_research_citation/ 1/5/3/1/9/p153193_index.html
3 http://en.wikipedia.org/wiki/Right_to_petition
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6 http://mawasim.wordpress.com/2007/04/12/the-domestic-application- of-international-by-human-rights-norms/
8 http://www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/ 99/9905.htm
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13 htpp://www.un.org/esa/socdev/enable/discom301.htm
14 http://huachen.org/english/bodies/chr/special/index.htm