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Cheffi Brenner, , Nantes, January 2006

What can be done to prevent a committee authorised to receive individual or collective communications from becoming rapidly overloaded?

The European Court of Human Rights (82,100 cases pending, a number expected to rise to around 250,000 by 2010, according to some forecasts) is a real foil for some States, starting with European States that must devote considerable time to answering the questions raised by each case. The Interamerican Court of Human Rights is similarly encumbered by a backlog of cases, as are all the committees authorised to receive communications dating back several years, the first among them the Human Rights Committee. This is a consequence of increasing juridicisation in many countries, which is spurring complainants to use all available remedies at the national and international levels. This often results in overloading of the competent national and international tribunals. (Régis de Gouttes)

What kind of mechanism could be established that would cover all rights without becoming an institutional behemoth, paralysed by the sheer mass of cases referred to it ? This question was raised at the seminar. It is of particular relevance since the justiciability of economic, social and cultural rights is far less organised at the national and regional levels than that of civil and political rights, so that those natural filters are likely to work (even) less efficiently for economic, social and cultural rights.

Other speakers sought to assuage concern about this issue. The observation was made that the possibility of submitting individual complaints to the Committee on the Elimination of Racial Discrimination, which has fairly broad competence in economic, social and cultural rights, did not lead to overloading. In 1999, only 10 complaints were filed, which gave rise to six opinions from the committee (cases 1/1984 “Yilmaz-Dogan v. The Netherlands; 2/1989 “Diop v. France”; 3/1991 “Narrainen v. Norway”; 4/1991 “L. K v. The Netherlands; “P. v. Denmark”; “P.B. v. Australia”) (1). The total number of complaints to date is about 30. Similarly, between 1978 and 2005, the Committee on Conventions and Recommendations of the Executive Board of Unesco received 529 communications. Of those, 330 have been processed, which is more than 60 percent.” (Vladimir Volodine)

The solutions suggested can be divided into two broad types : technical (I) and political (II)

I. Technical solutions

Because they are overloaded, the European Court and the Human Rights Committee are the examples not to follow. However they do propose some interesting technical solutions which could serve as models.

For example, Protocol 14 of the European Convention on Human Rights, which will take effect in May 2006 if it is ratified by all the States parties to the Convention, offers a panoply of instruments : a single judge may declare an individual application inadmissible or strike it out of the court’s list of cases; the court may now declare an application inadmissible if the applicant has not suffered a significant disadvantage, unless respect for human rights requires an examination of the application on the merits (except for cases that have not been duly considered by a domestic tribunal) ; under a simplified procedure, three-judge committees are now authorised to judge not only the admissibility but also the substance of repetitive cases when the court’s case law on the matter is clear.

The proposals made by Lord Woolf of Barnes (2) in his review of the working methods of the European Court of Human Rights might also be considered : that the Court deals only with properly completed application forms; and that satellite offices be established in key countries producing high numbers of inadmissible applications.

It was also suggested that national and international procedures should be better coordinated on the basis of three guiding principles: “subsidiarity”, which means that people whose human rights have been violated must first seek redress within the framework of the national legal system, and that international mechanisms only intervene subsidiarily, when the national system of protection proves insufficient or defective ; “optimal efficiency”, with each level of procedure fulfilling its respective role first at national, then at international level; and “interaction and cooperation” between the national and international levels, to avoid confrontation or conflict between national and international systems.

The implications of the principle of subsidiarity for economic, social and cultural rights were amply commented on : “It is important for each human rights body to fulfil its role at its level, to respect the limits of its competence and to be well informed of the doctrine or case law of the other bodies acting in the same field. International bodies must only intervene subsidiarily to the competent national tribunals and after applicants have used all domestic remedies, on the condition, however, that domestic remedies are sufficiently efficient and effective […]. The appreciation of the efficiency of national remedies should be based on extensive, complex case law. If national remedies are effective, the international bodies to which applications or individual complaints are submitted should declare them inadmissible and refer the applicants back to the remedies available domestically, in line with current practice at the European Court of Human Rights and the United Nations treaty body committees. Conversely, if national remedies are not sufficiently effective, international bodies should, while receiving the applications submitted to them, urge the States to make their domestic remedies effective. At the same time, States must guarantee all individuals efficient and effective domestic remedy if they wish to avoid national disputes being pursued and prolonged at international level, often for long periods of time.” (Régis de Gouttes)

Other technical solutions, such as grouping similar cases in the same hearing, were considered.

II. Political solutions

It was also suggested that the committee be authorised to select and process only exemplary cases in terms of interpretation of the law and gravity of the violation.

Some participants argued that only non-government organisations considered sufficiently representative, or with recognised competence in the fields covered by the ICESCR, be authorised to submit communications. Since its entry into force on 1 July 1998, the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints has demonstrated the use of such criteria (3). Similar criteria could prevent the committee from becoming overloaded by gratuitous or poorly documented communications, since the submitting organisations would have an interest in protecting their reputations and credibility within the framework of such a mechanism (4).” (Olivier de Schutter)

The suggestion seemed to warrant attention, even if its political aspects (how to define the criteria and avoid raising the burning issue of restricting the number of NGOs authorised to work with UN bodies) did not escape the participants.

The European Court of Human Rights has applied the principle of subsidiarity with national jurisdictions in an original way that demonstrates another interesting option. For example, in its ruling in “Broniowski v. Poland”, the court found that the lack of a mechanism at national level enabling the applicant to exercise his rights (in the matter at hand, his right to own property) was a violation of the Convention not only for the applicant but also for all other people in the same situation. The court requested the defendant State to implement an appropriate national mechanism as soon as possible and postponed the examination of other cases pending before the court until the reform is implemented.

The ruling suggests that, in negotiations between the UN and States that to date have not ensured the justiciability of economic, social and cultural rights to a great extent, the appealing prospect of not having to appear as often before international justice could make those States change their position.

Probably the most interesting proposal in terms of both efficiency and politics was that of Lord Woolf of Barnes to set up a “friendly settlement unit” at the European Court’s registry and use sanctions if friendly settlement is rejected. The proposal shows that the court, which has become a kind of “super court” for appeals against national rulings and enjoys an excellent reputation in that regard, is capable of revising the definition of justiciability that concerns it and reintroducing the idea that the best judgement is one that is accepted sincerely by the parties. The essence of the proposal is to expand the court’s function of mediation and arbitration.

The idea enjoyed a broad consensus among the seminar participants : the main purpose of the committee in charge of receiving individual and collective communications relating to allegations of violations of economic, social and cultural rights should be mediation, and the committee should have the requisite instruments to exercise that function effectively.

Notes :

(1) : Régis de Gouttes, De l’utilité de l’application complémentaire des procédures de plaintes individuelles devant les organes universels et régionaux de protection des droits de l’Homme : l’exemple des plaintes individuelles devant le Comité pour l’élimination de la discrimination raciale et devant la Cour européenne des droits de l’Homme, background paper (French only) prepared by Régis de Gouttes, member of the Committee on the Elimination of Racial Discrimination, pursuant to Paragraph 51 of Resolution 1998/26 of the Human Rights Commission, 26 February 1999.

(2) : Lord Woolf of Barnes was the Lord Chief Justice of England and Wales until 2005. He is also a member of the Group of Wise Persons tasked with drawing up a comprehensive strategy to secure the long term effectiveness of the European Convention on Human Rights and its control mechanism.

(3) : See Articles 1, 2 and 3 of the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, for the organisations authorised to submit such complaints to the European Committee of Social Rights. These provisions apply formal criteria (consultative status with the Council of Europe, special list drawn up by the Committee of Ministers of the Council of Europe) and more flexible criteria (representivity, particular competence in the matters covered by the European Social Charter) assessed by the committee. The use of these criteria has not raised any particular difficulty to date.

(4) : During the discussion before the Committee on Economic, Social and Cultural Rights that led to its proposal in 1997, the fear was raised that authorising the submission of communications under conditions assimilable to actio popularis “would also broaden considerably the scope of the obligation assumed by States parties and would potentially open the door to speculative complaints”, thus “opening up the procedure to a vast number of complaints which do not have to satisfy any minimum requirements designed to filter out ill-informed or gratuitous complaints” (UN Document E/CN.4/1997/105 (18 December 1996), para. 22). In fact, when communications are submitted by organisations whose representivity and competence are assessed by the committee, they tend to be better justified than communications submitted by individuals who are the direct victims of the alleged violations because those organisations filter out applications whose allegations are unfounded.