What happens once a complaint is made?

Contributed by LorraineFinlay and current to 27 July 2018

One of the significant drawbacks of making a complaint at the international level is that the process if extremely slow. Each of the Committees only meet a few times every year, so it can take a long time for any individual complaint to be dealt with. The complaint process is confidential and conducted in closed sessions, although at each stage the Committee will communicate with both the individual who made the complaint and the relevant government.

In deciding a complaint, the Committees will consider the written complaint that has been received and will also ask the relevant State party to respond to the allegations. It is usual for a State party to be given six months to make submissions in response to a complaint, and the complainant will also then have the opportunity to comment on this response. Most matters are dealt with entirely through written submissions, although some Committees may invite parties to make comments in person in particularly complex or important cases.

Each of the Committees has slightly different procedures, but there are generally two key stages that a complaint will proceed through – the ‘admissibility stage’ and the ‘merits stage’. A Committee will usually consider both admissibility and merits jointly in an effort to streamline the process.

The Committee will first determine whether the complaint is admissible, that is, whether it meets the formal requirements that every complaint must satisfy before it can actually be considered. This requires three key things be established:

1. There has been an alleged breach of a human right protected by the treaty that the Committee deals with.
   

   United Nations Committees do not deal with hypothetical scenarios or potential future breaches. The person making the complaint must be able to show that they have been personally affected by an alleged breach that has already occurred. They must also show that the complaint relates to a right protected under the particular treaty, and that the relevant State is a party to that treaty.

2. The complainant has exhausted local remedies.

   This means that the complainant must show that they have pursued all available remedies under Australian law before lodging a complaint at the international level. This might include lodging a complaint with the Australian Human Rights Commission (or relevant State-based anti-discrimination commission) and pursuing a claim through the Australian courts.

3. The complaint is not being examined, and has not already been examined, by any other international mechanism.
   

   The Committees will not consider complaints that have already been examined by other international procedures or Committees, or that are currently under investigation through other international mechanisms. This is designed to prevent a single complaint from being considered multiple times by different bodies, and is necessary given that there is often considerable overlap between human rights complaint mechanisms at the regional and international level.

If a complaint is considered to be admissible, the Committee will go on to consider the merits of the particular case. This involves deciding whether there has been an actual violation of the alleged victim’s rights under the treaty based on the facts that have been presented to the Committee. The Committee will consider the submissions made by the complainant and the relevant State party, and will give reasons for its conclusion that a treaty violation has or has not occurred.

If the Committee finds that there has been a violation it will publish this decision, and may recommend a range of possible remedies, including compensation. The final decisions that are adopted by each Committee are made public although, as noted above, the Committee may choose not to disclose the identity of the complainant if dealing with matters of a particularly personal or sensitive nature. The decisions of a Committee are final and there is no option to appeal.

It is important to note, however, that the decisions of United Nations Committees are not legally binding on national governments. If a Committee finds that a violation has occurred, it will usually invite the State party to report to the Committee within a set time frame on the steps that it has taken to implement the recommendations made by the Committee. Each Committee has developed follow-up procedures to monitor whether State parties have implemented their recommendations, which usually take the form of the matter being kept under consideration by the Committee and a dialogue being pursued with the State party.

However, despite the existence of follow-up procedures, the decisions of United Nations Committees cannot be enforced in the same way as the decision of a domestic court. While Committee decisions may carry significant political and moral weight, they are ultimately recommendations and cannot be strictly enforced.