Optionals Protocols

It is possible to make individual complaints to the Human Rights Committee, the Committee against Torture, and the Committee on the Elimination of Discrimination against Women, but only if the government has agreed to be bound by Optional Protocols to the relevant convention. An Optional Protocol to the International Covenant on Economic, Social and Cultural Rights is currently being devised. In practice, the United Kingdom has not agreed to any of the three existing Optional Protocols. Ireland has signed up to two of them, those on human rights (known as the first Optional Protocol to the International Covenant on Civil and Political Rights) and women. Ireland has not yet ratified the International Convention against Torture; when she does so, it is expected that she will also agree to be bound by its Optional Protocol.

Thus the Human Rights Committee and the Committee on the Elimination of Discrimination against Women can consider complaints from individuals who allege that their human rights have been violated by Ireland but people under the jurisdiction of the UK cannot complain to the Committees about anything the UK government has done or has failed to do. Anyone who is under the jurisdiction of the Irish government, however, can make a complaint against it to the Committees, although the Committees will not accept complaints by Irish people against the UK’s actions in Northern Ireland because the UK has not ratified the relevant Optional Protocols.

People wishing to make a complaint (complainants) must have exhausted their domestic remedies. This means that they must have taken all possible legal steps within their own country which might provide them with an effective remedy for their complaint. In Ireland, this might include an action for compensation and/or an action for breach of constitutional rights. However, if obtaining such a remedy would be “unreasonably prolonged” it need not be pursued. Also, the absence of legal aid in most civil cases and cases of judicial review in Ireland may mean that, although a domestic remedy exists, in practice it is not available, in which case the Optional Protocols can be invoked. Complainants can only take their case to the Committees if it is not being examined under any other procedure of international investigation or settlement, such as proceedings before the European Court of Human Rights and the European Court of Justice.

Complaints must be made in writing. They should include:

• the name, address, age and occupation of the complainant;
  
• the name of the government against whom the complaint is made;
  
• which provisions of the ICCPR or CEDAW are alleged to have been violated;
  
• the facts on which the complaint is based;
  
• what steps have been taken to exhaust domestic remedies, and with what outcome;
  
• whether the matter is being or has been considered by any other international human rights body, and with what result.

Complaints will not be accepted if they are anonymous. An NGO or lawyer - practising or academic - can make a complaint on someone else’s behalf, but must include the complainant’s authority to do so.

Complaints which are incompatible with the ICCPR or CEDAW or which constitute an abuse of the right to make a complaint under the Protocols will not succeed. For example, a racist group complaining that its freedom of expression had been violated because it was prevented from circulating pamphlets that incited racial hatred would be dismissed.

There is no time limit for making a complaint, but unreasonable delay might be considered by the Committee as being an abuse of the right to make a complaint.

If a complaint is found admissible (accepted), it is transmitted (sent) to the respondent government (the Member State against whom the complaint has been made). The government has six months to reply with an explanation, clarification, and/or a description of the remedies that it has already made available to the complainant. This reply is sent to the complainant, who has six weeks to make any final comments.

The matter is then considered by the Committee in closed (private) session. Neither the complainant nor the respondent government is present. There is no oral hearing. If a member of the Committee has any personal interest in a case, s/he will take no part in its consideration.

The Committee then expresses its views on the case. These are not legally binding but have moral and political impact. Although the proceedings of the Committee are confidential, their views are made public and a summary of their activities under the Optional Protocol is included in their annual report to the UN. While the Committee is considering a case, no publicity is allowed, but complainants are free to publicise the fact that they have won their case once the Committee’s views are made public. The Committee will protect the anonymity of a complainant if asked to do so, or if the Committee itself decides to do so.

While a case is going through the procedures, the Committee can inform the government that in its view interim measures are required to avoid irreparable damage to the victim, regardless of its final views on the complaint. This might be very useful in cases of, for example, deportation or extradition. If your case is very urgent, see URGENT CASES.

There is no legal aid from the UN to pay for the costs of preparing a complaint. Whether legal aid is available is a matter for individual governments. The Irish government has not made legal aid available for these purposes.

Complaints should be sent to the Secretary of the relevant Committee (see table).

Under Articles 8 and 9 of the Optional Protocol to the International Convention on the Elimination of Discrimination against Women, the Committee has the power to conduct inquires into allegations of grave or systematic violations. Governments can opt out of these provisions, but Ireland has not done so. If the Committee receives reliable information of grave or systematic violations, it will invite the government to make submissions. Once these submissions have been considered, the Committee can designate one or more of its members to conduct an inquiry and make an urgent report. If it is necessary and the government agrees, the designated member(s) may visit the country concerned. The Committee then transmits its findings and recommendations to the government, who have six months to respond. Although the procedure is entirely confidential, the Committee can invite the government to report on any measures it has taken in response to the inquiry in its next periodic report to the Committee.