Statement by the Centre on Housing Rights and Evictions (COHRE) on Options on the Complementarity of Complaint Mechanisms
Open-Ended Working-Group to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR)
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As we are discussing, the report of the Secretary General containing comparative summary of existing communications and inquiry procedures –including admissibility criteria- my organisation, the Centre on Housing Rights and Evictions (COHRE), would like to briefly address the issue of complementarity or duplication of procedures.
During last week discussions, concerns have been raised that an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP to ICESCR) would overlap with other existing complaint procedures and that such duplication should be avoided.
Complemetarity in the human rights framework is not a new issue and did not constitute a problem for the development of individual complaint mechanisms related to civil and political rights. For instance, assuming that a Roma woman is victim, in one European country, of torture and other forms of cruel, inhuman or degrading treatment, this person could, in theory, file an individual complaint to the following procedures: the UN Committee against Torture, the UN Human Rights Committee, the UN Committee on the Elimination of Racial Discrimination, the UN Committee on the Elimination of Discrimination against Women and the European Court on Human Rights.
Similarly, assuming that the house of a Roma woman, in one European country, has been destroyed for racial motives, this person could, in theory, and assuming that there is an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, file a complaint to the following bodies: the UN Human Rights Committee, the UN Committee on the Elimination of Racial Discrimination, the UN
Committee on the Elimination of Discrimination against Women and the UN Committee on Economic, Social and Cultural Rights.
In these particular hypotheses, clauses preventing the examination of a case by several procedures at the same time allow to avoid duplication. For instance, the Optional Protocol to the Convention on the Elimination of Discrimination against Women precludes the examination of a case if it has been examined by another procedure. The Optional Protocol to the International Covenant on Civil and Political Rights
Only precludes the simultaneous examination of a case. These options will have to be examined in the context of an OP to the ICESCR.
Regarding the consistency of the jurisprudence between these different mechanisms and the regional and international levels, the experts highlighted last week that the various bodies use the jurisprudence developed by another body and that they strive to guarantee consistency between their different decisions. As such, the existence of various procedures has been seen, by the various experts addressing this working-group, as a positive factor rather than a hurdle or a negative development.
The argument according to which certain rights should be left out of a future Protocol in order to avoid duplication would result in the fragmentation of the rights enshrined in the ICESCR and compromise a comprehensive approach, which would, as we have highlighted before, not only negate the reality that the victims are facing, but also prevent them to obtain full redress, restitution and the termination of the violations. Overall, COHRE believes that the issue of complementarity, or duplication, of procedures should be addressed by looking at the various procedural options available to avoid such duplication.
Regarding the type of violations that could be considered under an Optional Protocol, COHRE is strongly opposed to the introduction of certain thresholds and the qualification of as "serious" or "grave", as those which could be subject to a complaint procedure. Indeed, such an approach would not only introduce a new concept that is not enshrined in the Covenant, but would also raise the question on how to qualify such a violations, while putting the burden of proof on the victims.