Human Rights Committee: ICCPR and Optional Protocol to the ICCPR

By Media Defense Southeast Asia

WHAT IS THE HUMAN RIGHTS COMMITTEE?
The Human Rights Committee is a body established under the International Covenant on Civil and Political Rights (ICCPR) to determine compliance by State parties with the said treaty. It is composed of eighteen members who are nationals of the State parties to the ICCPR. (See ICCPR, Article 28)

WHAT COMMUNICATIONS ARE BROUGHT BEFORE THE HUMAN RIGHTS COMMITTEE?


A “communication” is a compliant filed before an international body such as the Human Rights Committee. A communication before the Human Rights Committee may be filed by an individual who alleges a violation of any right under the ICCPR against a State that is a party to the ICCPR (See Optional Protocol to the ICCPR, Article 1). The concerned state must also be a party to the Optional Protocol to the ICCPR. 
For a communication against a state to be admissible before the Human Rights Committee, said state must be a party both to the ICCPR and the Optional Protocol to the ICCPR. Vietnam is bound by the ICCPR but not a party to the Optional Protocol to the ICCPR. 


WHO CAN BRING A COMPLIANT BEFORE THE HUMAN RIGHTS COMMITTEE?

According to Fact Sheet No. 7 (on the Complaints Procedure) published by the United Nations Office of the High Commissioner on Human Rights:
“Anyone can lodge a compliant with a committee against a State that satisfies these two conditions, claiming that his or her rights under the relevant treaty have been violated. It is not necessary to have a lawyer prepare your case, though legal advice usually improves the quality of the submissions. Be aware, however, that legal aid is not provided under the procedures. You may also bring a claim on behalf of another person on condition that you obtain his or her written consent. In certain cases, you may bring a case without such consent. For example, where parents bring cases on behalf of young children or guardians on behalf of persons unable to give formal consent, or where a person is in prison without access to the outside world, the relevant committee will not require formal authorization to lodge a complain on another's behalf.” (Fact Sheet No. 7/Rev.1, Complaints Procedure, Page 3)


WHEN IS A COMMUNICATION INADMISSIBLE BEFORE THE HUMAN RIGHTS COMMITTEE?

A communication before the Human Rights Committee is inadmissible if any of the following occurs:
1) the communication is anonymous;
2) the Human Rights Committee considers the communication to be an abuse of the right of submission of such communication;
3) the communication is incompatible with the provision of the ICCPR;
4) “the same matter in the communication is not being examined under another procedures of international investigation or settlement” or
5) the individual has not exhausted all available domestic remedies.


IS THERE A NEED FOR EXHAUSTION OF DOMESTIC REMEDIES BEFORE I CAN FILE A COMMUNICATION TO THE HUMAN RIGHTS COMMITTEE?

Yes. There is a need for exhaustion of domestic remedies before one can file a communication to the Human Rights Committee. As provided by Article 2 of the Optional Protocol to the ICCPR:
Article 2: Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.



WHAT IS EXHAUSTION OF DOMESTIC REMEDIES?


Exhaustion of domestic remedies is explained in Fact Sheet No. 7 (on the Complaints Procedure) published by the United Nations Office of High Commissioner on Human Rights:
“A cardinal principle governing the admissibility of a complaint is that you must, in general, have exhausted all remedies in your own State before bringing a claim to a committee. This usually includes pursuing your claim through the local court system, and you should be aware that mere doubts about the effectiveness of such action do not, in the committee's view, dispense with this requirement. There are, however, limited exceptions to this rule. If the exhaustion of remedies would be unreasonably prolonged, or if they would plainly be ineffective (if, for example, the law in your State is quite clear on the point at issue) or if the remedies are otherwise unavailable to you (owing, for example, to denial of legal aid in a criminal case), you may not be required to exhaust domestic remedies. You should, however, give detailed reasons why the general rule should not apply. On the issue of exhaustion of domestic remedies, you should describe in your original complaint the efforts you have made to exhaust local remedies, specifying the claims advanced before the national authorities and the dates and outcome of the proceedings, or alternatively stating why any exception should apply.”