Individual communications: Can they provide effective redress for human rights violations?

The International Covenant on Civil and Political Rights (ICCPR), together with its Optional Protocol, enables individuals to allege a violation of their rights by submitting a ‘communication’ to a committee of independent experts nominated to monitor compliance with the ICCPR. This procedure may result in a finding that the State Party has violated the ICCPR, and consequent changes to law and policy which can benefit individuals and groups. However, the procedure has serious flaws, including long delays in making findings, and difficulties concerning enforcement.

International law mainly protects the interests of nation states, rather than people or groups within a state.Further, international law (which includes customary and treaty law) prioritises state sovereigntythe right of states to regulate matters within their own borders.Generally, international law can be enforced only by states and not by individuals or groups (even those affected by treaty violations). 1 Human rights treaties, such as the International Covenant on Civil and Political Rights ('ICCPR' or 'Covenant'), 2 seek to protect the interests of individuals and groups.They are not 'mere exchanges of obligations between States' but are 'for the benefit of persons within [a state's] jurisdiction'. 3 Human rights treaties have a 'special character', 4 as they 'concern the endowment of individuals with rights.' 5 Further, treaties such as the ICCPR seek to hold states accountable for their treatment of individuals, for example by obliging states to provide an 'effective remedy' for any violation of rights. 6he Optional Protocol to the ICCPR 7 enables individuals to submit a 'communication' to a committee of independent experts, alleging a violation of their rights by a State Party. 8This may result in a finding that ICCPR rights have been violated, and consequent changes to law and policy which can benefit individuals and groups.However, the procedure has serious flaws, including long delays in making findings, and difficulties concerning enforcement.
This article examines when and how the individual communications procedure can provide effective redress for violations of the ICCPR by Australia. 9It seeks to promote 'wider knowledge of the communications procedure' in order to support individuals seeking to make communications under the Optional Protocol. 10The individual communications procedure is regularly referred to in the popular media, 11 however its benefits and flaws are less well known.The first part of this article outlines the communications procedure and its potential outcomes.The second part examines the requirements for submitting a communication.The third section examines flaws with the procedure, including potential delays and noncompliance by Australia.The final part examines the circumstances in which a communication is likely to provide effective redress.

The ICCPR and the individual communications procedure
The ICCPR is an international human rights treaty which has been ratified by 173 states. 12It contains a range of universally recognised civil and political rights, such as freedom of expression, right to life, and freedom from torture.Each State Party to the ICCPR undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the [ICCPR], without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 13ecifically, State Parties undertake to adopt the provisions of the ICCPR in their domestic laws and practices, to give effect to the rights in the ICCPR. 14Further, State Parties undertake to 'ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy'.They also undertake that 'any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities', and that 'the competent authorities shall enforce such remedies when granted.' 15 The ICCPR established the Human Rights Committee ('HRC' or 'Committee'), consisting of 18 persons of 'high moral character and recognized competence in the field of human rights'. 16The HRC's function is to monitor whether states are 'giv[ing] effect to the rights recognized [in the ICCPR] and … progress made in the enjoyment of those rights'. 17he HRC monitors a state's implementation of the ICCPR in three main ways. 18First, it receives periodic reports on measures the State Party has adopted to give effect to the ICCPR. 19In response, the HRC provides comments on the state report. 20Second, the HRC publishes general comments 'on specific topics addressing aspects of the [ICCPR] or its Optional Protocols with a view to assisting States parties in fulfilling their obligations under the Covenant and its Optional Protocols.' 21The HRC has published general comments on the scope and nature of various ICCPR rights, and the obligations of state parties. 22inally, the HRC may 'receive and consider … communications from individuals claiming to be victims of violations of any of the rights' in the ICCPR. 23The HRC's competence to consider individual communications derives from the Optional Protocol, rather than from the ICCPR.The procedure was introduced to 'further to achieve the purposes of the [ICCPR] and the implementation of its provisions'. 24ndividual communications differ from the HRC's other functions in significant ways.First, communications are initiated by an individual rather than by the state or the HRC. 25 Second, communications relate to the circumstances of an identified person, rather than broader policy 9 This article focuses on the procedure's application to Australia.However, it is available in the circumstances set out later in this article.10 Elizabeth Evatt, 'Reflecting on the role of international communications in implementing human rights' (1999) 5(2) Australian Journal of Human Rights 20, 43.11 See, eg, Anthony Galloway, 'Australia holding former "top gun" pilot in "inhuman" conditions, UN told', The Age (online, 27 February 2023) https://www.theage.com.au/politics/federal/australia-holding-former-top-gun-pilot-in-inhumane-conditions-un-told-20230223-p5cn0x.html.and legislative measures (which are the focus of state reports and general comments).Significantly, a single violation of one person's ICCPR rights is sufficient grounds for an individual communication; there is no need to show a serious, widespread or ongoing human rights violation. 26n relation to federal states such as Australia, a communication may relate to the laws or practices of state or territory governments, or to federal law or practice.This is because the ICCPR extends 'to all parts of federal States without any limitations or exceptions.' 27 Further, as Australia is one state in international law, it 'may not invoke the provisions of its internal law as justification for its failure to perform a treaty'. 28n the Toonen case, a communication resulted in a finding that Australia had violated the ICCPR, and the offending laws were ultimately repealed. 29This case challenged Tasmanian laws which criminalised consensual sex between adult males.Toonen argued that these laws violated his rights to freedom from discrimination based on sexual orientation, and his right to privacy.The HRC upheld Toonen's communication and the Commonwealth passed laws invalidating the Tasmanian laws.Therefore, Toonen was successful before the HRC and Australia complied with the HRC's views. 30The decision instigated systemic change, as it protected the rights of sexual minorities in Tasmania and not merely Toonen individually.However, as will be explained later in this article, the Toonen case is exceptional as Australia has not complied with many findings by the HRC.

Requirements for making a communication
There are several requirements for a communication to be considered by the HRC.The HRC must consider the admissibility of each communication, and inadmissible communications may be rejected without considering their merits (whether or not a violation has occurred). 31missibility requirements are outlined in the Optional Protocol and are summarised below.
First, the state against whom the communication is made must be party to the ICCPR and the Optional Protocol.In March 2023, there were 117 state parties to the OP. 32urther, the violation complained of must have occurred after the State Party ratified the OP, including any continuing effects. 33econd, the communication must be made by a 'victim[] of [a] violation[] of any of the rights set forth' in the ICCPR. 34This means that an individual must be 'personally affected' by the alleged violation. 35An authorised representative may make a communication on another person's behalf.
Third, the communication's author must be 'subject to the State Party's jurisdiction'. 36The author need not be a citizen of the state, and several communications have been made against Australia by people in Australia's migration detention system. 37The focus is on the state, and its power to either protect or violate rights, rather than on the legal status of the author.
Fourth, the communication must be in writing, and it must identify the author. 38Further, a communication is inadmissible if the HRC considers it 'to be an abuse of the right of submission … [or] … incompatible with the [ICCPR]', 39 such as submitting a communication which has already been rejected, or if there has been an unreasonable delay in making the communication. 40ifth, the substance of the communication must not currently be 'examined under another procedure of international investigation or settlement'. 41This requirement prevents overlap, and potentially conflicting views, as between various international mechanisms, such as other UN or regional human rights bodies.
Sixth, all available domestic remedies must be exhausted before making a communication to the HRC. 42This requirement supports the sovereignty of states and particularly their ability to resolve matters at a domestic level 26 Alston and Goodman (n 8) 809.Further, communications may be submitted and received at any time, making the mechanism potentially more responsive than state reports.Toonen v Australia (488/1992) 3I March 1994, UN Doc CCPR/C/50/D/488/1992.As mentioned above, under international law, Australia is one state, and it is therefore responsible for the laws of each of its states and territories.The HRC's Rule of Procedure provides: '[A] delay in submission will not automatically constitute an abuse of the right of submission.However, there might be abuse when the complaint is submitted after five years from the exhaustion of domestic remedies or, where applicable, after three years from the conclusion of another procedure of international investigation or settlement, unless there are reasons justifying the delay taking into account all the circumstances of the case': Rules of Procedure (n 21) r 99(c).before international redress is available.In the Australian context, this generally means exhausting all judicial processes for redress. 43aking a communication commences a new and fresh review of the allegation, rather than an appeal from an earlier decision or a continuation of earlier proceedings. 44he procedure seeks to determine whether ICCPR rights have been violated and, if so, whether an effective remedy has been provided to the victim. 45inally, the communication must identify the right or rights violated, and it must provide sufficient supporting facts.It must allege violation of the rights listed in the ICCPR, rather than any other rights.This does not prevent the HRC from determining a communication which may potentially be dealt with under another treaty.For example, the HRC has determined several communications regarding Australia's migration detention system, although these may raise issues under the Convention against Torture, 46 and other treaties.

Flaws in the communications procedure
Despite its potential to provide redress, the communications procedure has significant shortcomings.This section examines two significant flawsdelays in making findings, and non-compliance by Australia with findings.
Regarding delays, the OP provides no firm time limit in which the HRC must provide its 'view' on a communication. 47When the HRC receives a communication, it is transmitted to the relevant state party, 48 and '[w]ithin six months, the receiving State shall submit to the [HRC] written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.' 49 The HRC considers this material and 'forward[s] its views to the State Party concerned and to the individual.' 50ypically, three to four years is the expected time from submitting a communication to receiving a view.This is due to the largeand increasingnumber of communications received by the HRC, and the Committee's infrequent meeting times. 51he Rules of Procedure provide that the HRC may request that the State party concerned take on an urgent basis such interim measures as the Committee considers necessary to avoid possible actions which could have irreparable consequences for the rights invoked by the author. 52terim measures may be requested for example when there is evidence of any immediate risk to a person's life, such as where a state proposes to deport a person in circumstances where they face possible execution, or torture. 53The Rules of Procedure state that 'failure to implement [interim] measures is incompatible with the obligation to respect in good faith the procedure of individual communications established under the Optional Protocol.' 54 There's truth in the saying that 'justice delayed is justice denied', and a person's circumstances may deteriorate while they await an outcome.Significant delays may compromise the effectiveness of the individual communications procedure.However, delays may be regarded as acceptable, as these are comparable to the delays experienced in domestic court proceedings.
Human rights scholar Henry Steiner has proposed significant reforms to the communications procedure, such as allowing the HRC to choose which communications to give views on, rather than the current requirement to respond to all admissible communications. 55This would assist in reducing the backlog of unresolved communications, and the delay in giving views.However, this proposal could potentially deny redress to victims whose communication was considered less serious.
Even more significantly, the HRC's views are not binding in the sense that State Parties do not have to comply with them and victims cannot enforce a view in domestic courts. 56The HRC is not a court and, apart from follow up procedures introduced in 1997, no enforcement mechanism exists.States are bound by international law to carry out treaty obligations in good faith. 57However, this duty is enforceable only by other states.
Australia has failed to comply with many HRC views which have found serious violations of the ICCPR.For example, A v Australia 58 involved a Cambodian family who were detained in immigration detention in Australia for over four years.In this decision, the HRC found that Australia's system of 'indefinite and prolonged' mandatory detention constitutes arbitrary detention in violation of article 9(1) of the ICCPR, regardless of its lawfulness domestically.Further, the inability of the family to have their detention reviewed by a court violated article 9(4).The Committee said that domestic review of the lawfulness of detention ought to include consideration of Australia's obligations under the ICCPR.The HRC found an added breach of article 2(3) (the right to an effective remedy), despite this not being claimed explicitly by the author. 59wever, Australia 'rejected the Committee's interpretation of the ICCPR and refused to compensate the author's family' 60 or repeal laws mandating detention for 'irregular maritime arrivals'.Further, over the last two decades, subsequent Australian governments have refused to comply with the HRC's views in A v Australia.A favourable view by the HRC is therefore no guarantee that ICCPR rights will be vindicated.
In dualist states such as Australia, the validity and enforcement of domestic laws is separate from any breaches of international law.Australia may therefore enact and enforce domestic laws which do not comply with international treaties such as the ICCPR. 61Domestic courts, including the High Court of Australia, have no jurisdiction to determine whether domestic laws comply with international treaties.
In 2008, the HRC published a strong statement regarding States' compliance with its views.This General Comment highlights the similarities between its views and judicial decisions.
[Views] are arrived at in a judicial spirit, including the impartiality and independence of Committee members, the considered interpretation of the language of the Covenant, and the determinative character of the decisions. 62C views commonly refer to previous views, and to the HRC's General Comments.Thus, HRC views are similar to court decisions based on general principles and precedents.Following precedents provides a degree of consistency and predictability, that similar cases will be decided alike.Over time, the HRC has generated a substantial body of jurisprudence regarding the nature, scope and basis of ICCPR rights.63 The HRC regards its views as an 'authoritative determination by the organ established under the Covenant itself charged with the interpretation of that instrument.' 64 As mentioned above, the HRC is a body of independent human rights experts with authority to interpret the provisions of the ICCPR and to monitor States' compliance.
The International Court of Justice has stated that it gives 'great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty'. 65The Court said that giving weight to HRC views achieve[s] the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled. 66 1997, the HRC established follow-up procedures, by 'designating Special Rapporteurs for follow-up on views for the purpose of ascertaining the measures taken by the States parties to give effect to the Committee's views.' 67 The Special Rapporteur may make recommendations for further action by the HRC as necessary and report to the HRC on follow-up activities. 68The HRC states that, 'In a number of cases this procedure has led to acceptance and implementation of the Committee's views where previously the transmission of those views had met with no response.' 69However, follow-up actions remain recommendations, which state parties can (and do) ignore.
Negative publicity may influence State Parties to comply with HRC views on individual communications.The HRC notes that failure by a State party to implement the views of the Committee in a given case becomes a matter of public record through the publication of the Committee's decisions inter alia in its annual reports to the General Assembly of the United Nations. 70litical and diplomatic pressure may influence Australia and other states to comply with their human rights obligations.However, the HRC (and other international bodies) are unable to directly enforce their decisions on Australia, and there is no mechanism for successful complainants to seek redress through courts or other legal avenues.

14
Ibid art 2(2).See generally, Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.1326 (2004).
. See ICCPR Part IV generally regarding the functions of the HRC.Although HRC members are nominated by member states, they serve in their personal capacity: ICCPR art 28(3). 17

Ibid art 40 .
This aligns with the duties of state parties as set out in ICCPR art 2 and Part III.18 For an overview of these functions, see United Nations, UN Doc HR/MC/2006/2 (2006) [8]-[10].19 ICCPR (n 2) art 40.20 Ibid.The ICCPR also provides for 'inter-state' communications, that is, a claim by one state party that another State Party 'is not fulfilling its obligations under' the ICCPR: see ICCPR art 41.This procedure has never been used: Alston and Goodman (n 8) 763.21 United Nations, Rules of Procedure of the Human Rights Committee, UN Doc CCPR/C/3/Rev 12 (2021), Rule 76(1) ('Rules of procedure').22 See United Nations High Commissioner for Human Rights, General Comments: Human Rights Committee https://www.ohchr.org/en/treaty-bodies/ccpr/general-comments.23 OP (n 7) preamble.24 Ibid.See generally Human Rights Committee, General Comment No 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights, 94 th sess, UN Doc CCPR/C/GC/33 (25 June 2009) ('General Comment 33').

See
Vienna Convention on the Law of Treaties, open for signature 23 May 1969, entered into force 27 January 1980 art 27 ('Vienna Convention'). 29

43
This requirement means that complainants must exhaust all options which are reasonably available, but not ones which are ineffective or dangerous: Aouabdia v Algeria No 1780/2008, views adopted 22 March 2011, UN Doc CCPR/C/101/D/1780/2008. 44 Alston and Goodman (n 8) 809.45 ICCPR (n 2) art 2(3) requires state parties to provide an effective remedy for violation of any ICCPR right.46 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).