‘‘concluding observations’’ on the state’s compliance including areas of concern and recommendations for action.
The effectiveness of this process is contingent on cooperation by states. Noncooperation
has been a frequent problem with the system, and one which the UNHRC is taking an increasingly active role in monitoring. However, the presence of NGOs provides a very real opportunity for the human rights issues experienced in a given jurisdiction to be identified, thereby
reducing the ability of a state to subvert the process by providing inaccurate information.
That said, the UNHRC’s recommendations under this procedure are simply that—
recommendations—and are not binding. Additionally, the institutional constraints and chronic
underresourcing endemic within the U.N. system limit the ability of the Committee to conduct
searching and comprehensive analysis of the situations within states.
28
This reporting process is the only supervisory mechanism that applies automatically under
the ICCPR. Article 41 of the treaty provides that states may take complaints against other
states to the UNHRC if both states have previously agreed that the UNHRC has jurisdiction
to do so. Perhaps unsurprisingly, this procedure has never been utilized.
Complaints from Individuals
A potentially more effective procedure is one that allows individuals to make complaints to the
UNHRC about a state’s failure to secure their rights under the ICCPR. The process is significant because it gives direct enforcement rights to affected people. This standing is in marked
contrast to the traditional model of international law, which recognizes only states as actors.
Of course, this process is only available if the state concerned has previously become a party
to the First Optional Protocol to the ICCPR (Optional Protocol), a separate treaty that provides
jurisdiction for this process.
In this Optional Protocol process, the UNHRC begins by determining if the complaint is admissible. This essentially involves a determination of whether the complaint is from a victim of
an alleged violation of rights in the ICCPR, whether the individual has exhausted all available
domestic remedies, and whether the state concerned is a party to the Optional Protocol.
If a complaint is admissible, the merits are then considered, and the Committee subsequently issues its ‘‘views.’’ The use of the term views is significant: the UNHRC’s role in adjudicating such complaints is to ensure consistency with the ICCPR, and the body is not
intended to function as an international court. As a consequence of this arrangement, its
decisions are not binding and have normative status only. History has shown that in many
cases a state party against whom there has been a ruling will comply with the Committee’s
recommendations—whether that compliance entails offering recompense to an affected individual or repealing an inconsistent piece of legislation.
29
A starting point when examining the effectiveness of the Optional Protocol mechanism is to
examine which states are even party to this supplemental instrument. To date, there are some
109 state parties.
30 Among countries whose filtering practices are studied by the OpenNet Ini86
Mary Rundle and Malcolm Birdling
The effectiveness of this process is contingent on cooperation by states. Noncooperation
has been a frequent problem with the system, and one which the UNHRC is taking an increasingly active role in monitoring. However, the presence of NGOs provides a very real opportunity for the human rights issues experienced in a given jurisdiction to be identified, thereby
reducing the ability of a state to subvert the process by providing inaccurate information.
That said, the UNHRC’s recommendations under this procedure are simply that—
recommendations—and are not binding. Additionally, the institutional constraints and chronic
underresourcing endemic within the U.N. system limit the ability of the Committee to conduct
searching and comprehensive analysis of the situations within states.
28
This reporting process is the only supervisory mechanism that applies automatically under
the ICCPR. Article 41 of the treaty provides that states may take complaints against other
states to the UNHRC if both states have previously agreed that the UNHRC has jurisdiction
to do so. Perhaps unsurprisingly, this procedure has never been utilized.
Complaints from Individuals
A potentially more effective procedure is one that allows individuals to make complaints to the
UNHRC about a state’s failure to secure their rights under the ICCPR. The process is significant because it gives direct enforcement rights to affected people. This standing is in marked
contrast to the traditional model of international law, which recognizes only states as actors.
Of course, this process is only available if the state concerned has previously become a party
to the First Optional Protocol to the ICCPR (Optional Protocol), a separate treaty that provides
jurisdiction for this process.
In this Optional Protocol process, the UNHRC begins by determining if the complaint is admissible. This essentially involves a determination of whether the complaint is from a victim of
an alleged violation of rights in the ICCPR, whether the individual has exhausted all available
domestic remedies, and whether the state concerned is a party to the Optional Protocol.
If a complaint is admissible, the merits are then considered, and the Committee subsequently issues its ‘‘views.’’ The use of the term views is significant: the UNHRC’s role in adjudicating such complaints is to ensure consistency with the ICCPR, and the body is not
intended to function as an international court. As a consequence of this arrangement, its
decisions are not binding and have normative status only. History has shown that in many
cases a state party against whom there has been a ruling will comply with the Committee’s
recommendations—whether that compliance entails offering recompense to an affected individual or repealing an inconsistent piece of legislation.
29
A starting point when examining the effectiveness of the Optional Protocol mechanism is to
examine which states are even party to this supplemental instrument. To date, there are some
109 state parties.
30 Among countries whose filtering practices are studied by the OpenNet Ini86
Mary Rundle and Malcolm Birdling