Duplication and divergence in the work of the United Nations human rights treaty bodies.

Position:Proceedings of the One Hundred Fifth Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 9:00 a.m., Saturday, March 26, by its moderator, Christina Cerna of the Organization of American States, who introduced the panelists: Sarah McCosker of the Australian Commonwealth Attorney-General's Department; Suzanne Nossel of the U.S. Department of State; Nigel Rodley of the University of Essex; and Ibrahim Salama of the Office of the United Nations High Commissioner for Human Rights, Human Rights Treaties Division. **

INTRODUCTORY REMARKS BY CHRISTINA CERNA

International human rights law is currently made by the following institutions: (1) three regional human rights courts (the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court of Human Rights (there is no UN human rights court, although some scholars have called for the creation of one)); (2) three regional human rights commissions (the Inter-American Human Rights Commission, the African Human Rights Commission, and the Asian Human Rights Commission (under ASEAN); and (3) nine (soon to be ten) United Nations human rights treaty bodies. Add to this the eight UN Country Rapporteurs and the 33 Special Procedures or thematic mandates assumed by the Human Rights Council, many of whom, if not all, also contribute to the creation of international human rights law.

In some sense we are fortunate that most of the world does not know about these international instances or know how to use them, because if they did, these bodies would be flooded with petitions. In 2001, Anne Bayefsky, in her study of UN treaty bodies entitled The UN Human Rights Treaty System: Universality at the Crossroads, noted the large number of states that were five, ten, 15, or even 20 years delinquent in the presentation of their first or periodic reports to the UN Human Rights Committee. She speculated that if all the countries filed their reports on time, the Committee would be unable to function.

I am personally not as concerned about the divergence aspect of the subject of our panel, since there are extremely few examples of contradictory jurisprudence of which I am aware. On the other hand, I consider the issue of duplication to be the most important issue before the regional human rights treaty bodies, and I would like to address this issue as a backdrop for our panelists' discussion of duplication in the UN treaty bodies.

At the regional level--not to speak of my own system, the Inter-American Commission of Human Rights--we know that the European Court of Human Rights (ECHR) is overwhelmed by its own success. As of January 1, 2011, the ECHR had approximately 140,000 pending cases--that is, 140,000 admitted cases, not pending petitions. To provide an idea of the ECHR's work capacity, last year it issued 1,500 decisions. With the current staff of almost 300 lawyers and the same procedures, it should take the ECHR 93 years to issue decisions on this backlog of pending cases, not to mention what to do with the 50,000 new applications received each year.

Over half of the ECHR's cases are pending against five countries: Russia (28.9%), Turkey (10.9%), Romania (8.6%), Ukraine (7.5), and Italy (7.3%). Next in line are Poland, Moldova, Bulgaria, Serbia, and Slovenia. Except for Italy and Turkey, these countries have only recently joined the Council of Europe. Half of the judgments of the ECHR, since its establishment, have concerned Article 6 of the European Convention on Human Rights, that is, violation of the fairness and length of judicial proceedings. The fact that fairness and length of proceedings constitute the subject matter of approximately 50% of the ECHR's case load underlines the problem of subsidiarity. The international instance exists because the individual has been denied justice at the domestic level, and that is why a petitioner is required first to exhaust domestic remedies. A petitioner cannot exhaust domestic remedies if these remedies do not exist, they take an inordinate time to exhaust, or the petitioner has been denied access to them.

The ECHR consists of five chambers and a Grand Chamber. The five chambers are assigned what can be called "clone" cases, and any chamber must cede a case involving a new question of law to the Grand Chamber. There is also an appeals mechanism in the ECHR which does not exist in the Inter-American Court; a petitioner or the state may also appeal a chamber decision to the Grand Chamber.

In summary, the ECHR spends most of its time repeating itself, issuing clone decisions in the five chambers, half of the time on the issues of the fairness of the trial or judicial delay. The ECHR is beginning to try to deal with this problem of repetition by issuing "pilot judgments" whereby the ECHR attempts to deal with "systemic issues." When the ECHR receives one or more applications that arise from a failure to adapt domestic law to the European Convention, the ECHR can postpone the treatment of the similar cases until it has issued a decision in the pilot case. It then calls on the state to bring the domestic legislation into line with the Convention.

Although the Inter-American Commission receives 1,500 petitions a year compared to the 50,000 received annually by the ECHR, only about 15 cases are transmitted to the Inter-American Court each year. So we are not vindicating the rights of every individual who comes before the system.

All of the international human rights treaties have a "duplication" provision that requires the supervisory body to declare a petition inadmissible if it is "substantially the same as one previously studied" by it or by another international organization. (1) Similarly, the ECHR shall not deal with an application that "is substantially the same as a matter that has already been examined by the Court" or has been submitted to another procedure of international investigation. (2) Both the European and Inter-American systems have taken an extremely restrictive reading of the words "substantially the same" and require that the facts, parties, and complaints "be identical" for the petition to be declared inadmissible under this duplication provision.

But must it be that way? The Inter-American system, for example, has dealt with a large number of repetitive cases, such as those dealing with forced disappearance, arbitrary detention, and torture. Many of these cases form part of a "pattern" of state violations, rather than a problem with a non-conforming domestic law. When a case forms part of a pattern, why could not the regional court treat all subsequent cases as derivative from the first case which has already been decided, and by means of a renvoi, send it back to the state for reparations, citing the leading precedent, rather than having to decide it all over again, cutting and pasting its earlier decision into the later one? Of course, there are cases dealing with domestic laws that violate a state's obligations under the human rights treaty, such as an amnesty law that closes off any possibility of investigation, prosecution, and punishment of a human rights violation. But does the Inter-American Court have to render a decision on the amnesty laws in Brazil, Chile, Peru, and Uruguay? Isn't one decision enough? Isn't the principle the same in each of these judgments? But it is time now to discuss the UN treaty body system. Our first speaker is Sarah McCosker.

CHRISTINA CERNA, Principal Specialist, Inter-American Commission on Human Rights, Organization of American States.

** Suzanne Nossel did not submit remarks for the Proceedings.

(1) American Convention on Human Rights, art. 47(d), Nov. 21, 1969, 1144 U.N.T.S. 143.

(2) Convention for the Protection of Human Rights and Fundamental Freedoms, art. 35(2)(b), Nov. 4, 1950, 213 U.N.T.S. 222.

REMARKS BY SARAH McCOSKER

The work of the UN human rights treaty bodies is a topic very pertinent to my work in the Australian Attorney-General's Department, where I lead the International Human Rights Law Section of the Office of International Law. This is the section that has coordinated most of Australia's treaty reporting and communications work to date, and engagement with the treaty body system generally.

I will first make some general remarks regarding the panel theme, then focus on two aspects of the treaty bodies' work on periodic reporting that provide interesting examples of duplication and divergence. From the outset, I emphasize that I am a finn supporter of the treaty body system and its important work within the UN human rights architecture. Although my remarks focus on aspects that need improvement, they are made in the spirit of critical reflection on how the system can be strengthened to build on its good work and enhance its effectiveness.

GENERAL REMARKS

The UN treaty bodies provide a striking example of the simultaneous trends in international law toward harmony and dissonance, unity and fragmentation. These are long-standing themes in international human rights law, linked to discussions about the indivisibility and interdependence of human rights, and how to balance this with concerns about specificity. Issues regarding treaty body reform have been discussed at great length over the last twenty years or so. There are now nine different treaty bodies (ten including the Subcommittee on Torture), each of which have some differences in their practices. However, so far there has not been any real radical reform of the treaty body system. Unlike the UN Charter system, which has undergone major reform through the creation of the Human Rights Council and the Universal Periodic Review Mechanism, the reform pathway pursued so far in the treaty body system has been that of incremental, gradual change, primarily through increased harmonization of committee practices. These developments have been positive, but uneven. The system continues to face several serious and well-known challenges--lack of adequate resources, many overdue periodic reports, significant backlogs in the committees'...

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