Individual communication procedure is a complaint filed by or on behalf of an individual who claims that the State party has infringed any of the rights under any Convention. Individual notices of breach of contract law or rights (sometimes referred to as individual complaints or petitions) can be sent to multiple contracting bodies. Individual notice is a complaint to a contracting body that leads to a statement or conclusion, such as a court (similar to a court decision). Processing individual communications with contractors can take up to three years after filing a complaint. With over 1500 backlogs currently, it can take up to 5 years or more. With limited resources, ten treaty bodies employ an average of 250 separate communications each year.
Special Procedure Notices are public comments by civil servants elected for violations and urge the state to correct the situation. In particular, the procedure is not bound by any contract. Notifications of special procedures can be sent in a few days or hours. The treaty body may investigate individual communications or complaints, as well as inquiries, if the state recognizes the relevant capabilities of the treaty body or if the state concerned is committed to a separate notification process. The Contracting Body may consider individual messages or complaints from third parties on behalf of those who claim infringement of their contractual rights or who have given or are unable to give written consent. Under certain circumstances, complaints can be filed on behalf of a group of infringed people (for example, CESCR, CERD, CEDAW, CRPD, CRC, etc.).
The Hague’s appeal to peace and justice in the 21st century proposed ideas for individual complaint procedures for violations of international humanitarian law. According to The Hague Agenda for Peace and Justice for the 21st Century, “The Hague Appeal advocates changes in the development and implementation of law in these two areas in order to bridge the critical gap in protection and reconcile these important areas of international law.” The comprehensive theme of The Hague’s appeal to peace is to replace the right to violence with law, which is supported by additional items on the agenda for peace and justice in The Hague. The contract was developed by a group of international lawyers to provide a framework for discussion. The draft is underway and readers are encouraged to participate in the discussion.
If the letter or complaint is found to be acceptable, the contracting body will investigate the case (usually with an exchange between the petitioner and the Contracting Party through a committee), and ultimately, the state will decide on the decision that everyone has to obey. The treaty body is a quasi-judicial body, but it cannot enforce its decisions. Individual letters or complaints need to be investigated by eight treaty bodies: CERD, CCPR, CESCR, CEDAW, CAT, CRC, CRCD, and CED.
Some human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR), the Convention on Economic, Social and Cultural Rights (CERD), and the Convention on Children’s Rights (CAT), include other countries. A country does not file a complaint against an individual that has never used these treaties. This information sheet applies only to individual complaints, not to national complaints. The wording of Article 1 of the First Choice Protocol of the International Covenant on Civil and Political Rights serves as an example of a clause in which a complaint can be filed. If a Contracting Party to the Covenant agrees to the current Protocol, the authority to issue a contract from the Commission with accepting and considering those who claim to be victims of infringement of the Covenant’s rights by that Contracting Party within its territory. If the message relates to a Contracting Party to the Covenant that is not a party to this Protocol, the Committee will not adopt it.
There are several cases that are examples of individual communication. The first is when ISHR has sent a separate notice to the Human Rights Commission of Korea (CCPR) on behalf of the two members of the National Human Rights Commission of the Maldives. Next is the case when the Open Society Justice Institute has submitted a separate notice to the Anti-Torture Commission (CAT) on behalf of those arrested and abused by Kazakhstan police. The Commission ruled against the state and demanded compensation for the victims.
Another example is when The Committee on the Rights of Persons with Disabilities (CRPD) made decisions based on individual communications or complaints from Argentine detainees who required special medical care and were denied some medical care. The person then filed a complaint with CRPD. In 2014, the Commission discovered that Argentina violated the provisions of the treaty and awarded the plaintiffs’ compensation, which Argentina is currently paying. Individual messages and complaints will be treated confidentially. Treaty bodies can also investigate complaints from one country to another.
A country is considered within the framework of a (neo) realistic paradigm of international affairs as a single entity with a given desire to maximize its own interests, regardless of the well-being of others. If a powerful country wants to do something, it will use all its power to reach the goal. Theoretically, this view should be positive for human rights. Despite growing concerns as perhaps the most powerful country in the world since September 11, 2001, the United States has a relatively good record of human rights in the country and promotes human rights reform in foreign policy. For example, the Foreign Assistance Act states that “a systematic pattern of serious internationally recognized violations of human rights” does not receive financial support.
The same applies more or less to almost all developed countries and the European Union. However, powerful countries rarely apply human rights standards consistently to foreign policy and are rarely ready to prioritize human rights issues. Political, economic, military, and other sanctions are rarely used by powerful countries to force other countries to improve their human rights records. Most governments do not care about the extent of human rights abuses in other countries until one of their citizens is affected. This is because, in contrast to openness to trade, when the human rights of citizens of another country are violated in another country, the country and its inhabitants remain largely untouched. Governments that violate human rights avoid exposing foreigners, especially those of strong Western nations, to the same human rights abuses as their residents in order to maintain foreign neutrality.
Another effect is that the international human rights framework is weaker than the financial and trading systems. There are no strong oversight and enforcement procedures and no competitive market factors that force governments to comply. Oversight, compliance, and enforcement provisions are either nonexistent, voluntary, or inadequate. Unless a strong country has shown a keen interest in the effectiveness of the international human rights system, parties with inadequate human rights records will not actually continue to have inadequate human rights records but rather treaties as a symbolic gesture of goodwill. As a result, a (neo) realistic perspective would not expect the international human rights framework to make a big difference in reality.
Hathaway provides a fascinating new perspective on the dual nature of human rights treaties, suggesting that ratification of the treaty is associated with poor performance. Although she is not a (neo) realist, her theory combines a lack of interest from a particularly strong country with relatively poor management and enforcement measures if the central assumptions of realism are correct. Hathaway argues that ratification of the treaty can divert internal and external pressure on true change by acting as an expression by letting the outside world know that the government is committed to human rights. When coupled with the weak oversight and enforcement mechanisms of international human rights treaties, unprofitable countries are not only able to escape persistent human rights abuses but are also based on the false assumption that the symbolic gestures of ratification of the treaty protect them from pressure. It can actually strengthen them due to the fact that ratification of human rights treaties could further exacerbate human rights records in this regard.
Institutional perspectives, in contrast to (neo) realism, emphasize the positive effects of the international system and help countries enjoy the mutual and often long-term benefits of cooperation. With this in mind, the regime is a way out of the prisoner’s dilemma by allowing countries to achieve Pareto optimality that cannot be achieved if they always pursue their short-term selfish interests. However, it is uncertain whether institutional views far raise expectations for the international human rights system over neorealist views. Because, as I said, it is doubtful whether increased respect for human rights between countries will lead to significant mutual benefits. Residents of a country may live in many countries, so countries with high human rights standards may be concerned about the fate of their foreign nationals and benefit from an effective international human rights system. People of the same ethnicity or religious group who live in different countries are treated equally. Countries with lower standards, on the other hand, are unlikely to share such benefits.
“In contrast to international institutions that regulate trade, currency, environment or security policies, international human rights agencies are primarily designed to regulate the political externality that results from cross-border social interactions. It is designed so that the government is responsible for its activities, not for something purely internal. “. Even if international human rights treaties are seen as a way to solve the prisoner’s dilemma for the mutual benefit of all parties, full cooperation is unlikely.
Economists argue that the means by which sanctions and other violations are enforced must be self-enforcement in the sense that they cannot rely on external enforcement authorities and must be safe for renegotiation. Sanctions can only be trusted if a group of threatened countries thinks it is better to enforce the sanctions than to avoid them and renegotiate the New Deal with Freeride. Contracts, where renegotiation is not safe, cannot prevent free riders. Because potential free riders expect to be able to sign another contract after the free-rider; they can avoid being punished.
By using game theory to examine the impact of self-assertion and renegotiation safety on multilateral cooperation, economists have come to pessimistic conclusions. Countries are parties, and the benefits of cooperation compared to non-cooperative equilibrium will be very small. In other words, collaboration is either limited (not wide) or shallow (not deep) (not deep). Downs et al., international relations theorists have very similar ideas that institutional views do not lead to hopeful expectations of the effectiveness of the international human rights system.
International treaties impose binding obligations on ratifying parties that countries want to comply with in accordance with regime theory. This can be seen as the sophistication of institutionalism. Contracting parties often seek compliance in the spirit of Pacta Sunt Servanda (the agreement must be maintained and complied with). This makes “compliance a natural prerequisite for an organization”. States do not engage in the often intolerable lengthy negotiations needed to reveal all the details of such treaties, if not necessary. Regime norms are widespread as a result of fair and legitimate trials and increase peer pressure to follow the norms, so if they adhere to a broader notion of substantive justice, the regime party is more likely to change its behavior. Franck claims that the International Human Rights Convention is working well in this regard. Contractual standards, on the other hand, are often interpreted as goals worth the long-term effort. This sets standards that many participating countries cannot or cannot meet now or in the near future. Mitchell and Chayes also point out that full compliance is neither a necessary nor sufficient condition for the effectiveness of an international regime.
Rather, what is important is that compliance is generally satisfactory. These high standards often serve as standards that parties are expected to progress over time, and compliance issues can be attributed to a lack of compliance skills rather than intentional disobedience. Levy et al. stated that high-level governments raise political concerns and set normative goals in low-level countries, communicate coercion among government members, subsidize or send money directly. Legalize and improve your ability to comply with what may be considered bribery or extortion. The fact that sanctions are rarely used against human rights abusers is not a problem with this “management model” of the international regime, as it is not about punishment but about helping to deal with inadequate compliance skills. Disobedience is an administrative issue, not an enforcement issue.
Regime theory will lead to hopeful but cautious predictions about the effectiveness of international human rights treaties. This is because such agreements do not fit into ideas in other areas or international agreements. As Provos point out the International Human Rights Convention is an example of lag between a company and performance. Moreover, contrary to the general belief that non-compliance is unintentional, the government may become a party to the International Human Rights Convention without the intention of complying, perhaps to soothe foreign or domestic members. It is recognized that the impact of non-governmental organizations can be significant, which is linked to the theory of global human rights networks.
After all, international human rights treaties do not provide much help in dealing with the lack of compliance capabilities. One factor may be that States parties have not seen violations of the norms of the Human Rights Convention as a result of their lack of compliance. Finally, it can be argued that the issue of competence does not prevent the state from abandoning human rights abuses. However, such an approach ignores the fact that human rights abuses are often carried out by low-level government officials (police, military, and other security agencies) who are not fully controlled by the central government. Limited capacity can make it difficult to educate and train these authorities on human rights issues, change incentive systems, and investigate and prosecute ongoing violations.
In contrast to previous theories, which focus almost exclusively on interstate activities on the international stage and as a single actor, the following three theories focus on interstate interactions. The cross-border legal process model focuses on the process by which state officials internalize international contract standards. Internalization is the final step in a three-part process that includes interaction, interpretation, and internalization. Diplomats, NGOs, and individual cross-border normative entrepreneurs building an epistemic human rights community have launched interactions (or series of contacts) that may lead to negotiations on international human rights treaties.
After a series of exchanges at various writing stages, state parties have agreed on a common understanding of norms, which will be reflected in the final treaty text. Regular follow-up sessions allow for more interactions and interpretations, progressively persuading non-complying state parties of the validity of the standards and, as a result, accepting and internalizing them. Internalization is more likely to occur when there is a larger group of players involved in various phases of interactions. This necessitates the participation of intergovernmental organizations, non-governmental organizations (NGOs), private persons, and possibly even business entities. Of course, as Koh acknowledges, the process does not always function well and occasionally fails spectacularly in certain nations, but the transgression of a few norms does not preclude most states from following them.
Of course, changing preferences contradict a realistic theory based on the assumptions of a fixed set of preferences, but the constructivist approach states that “the international system can change what the state wants.” This is made possible by suggesting that “the behavior of the government can be changed.” By changing their preferences, not by preventing states with fixed preferences from acting.” Goodman and Jinx’s (future) views on how actors are socialized and acculturated into contractual norms are relevant. It is important that regular encounters lead to cognitive and social pressure to adhere to state officials rather than persuade them to the norms of the contract. Such burdens meet the social criteria, are accepted and evaluated as members of the insider group, and the social-psychological benefits of conformity such as cognitive comfort and nonconformity such as dissonance and avoidance. It could be a cost and as a result, the suitability of the contract is higher than the adoption and internalization of contract principles.
The liberal perspective of international affairs rejects the realistic notion of the state as a single unit, instead stating that the state is made up of a large number of individuals with different interests. Therefore, domestic politics is important because of several reasons. National groups, whether non-governmental organizations, protests, political parties, or other types of groups, can use the international human rights system to persuade their governments to respect human rights more. If the domestic political framework allows opposition and peaceful political pressure on the government, there is more room for such pressure.
It may also be beneficial to use national courts to file proceedings against human rights abusers. Therefore, a liberal approach predicts that the international human rights framework will be most effective where democratic democracy and the rule of law are widespread. It is becoming increasingly difficult for such governments to take advantage of the expressive role of international human rights treaties without making substantive changes. Of course, there is a risk of a tautology because human rights are partly about access to judicial proceedings and the right to fair treatment, as this idea advocates the rule of law rather than political democracy.
The concept of cross-border human rights networks suggests that an international human rights system can improve actual performance if such networks are robust. Not only international human rights NGOs such as Amnesty International and Human Rights Watch but also domestic NGOs and other civil society organizations, political parties, and the media are forming a network. Improving human rights is seen as a five-step process that begins with unrestrained repression and ends with denial, tactical compromise, and periods of normative status, followed by obedient action. Passing through the stages is not automatic and can take a very short or long time, depending on the country and current pressure.
However, after a while, they often responded to particularly serious human rights abuses, with networks disseminating information, embarrassing aggressive governments, mobilizing international public opinion, and openly criticizing powerful nations. Start putting pressure on the administration. It also covers diplomacy, aid, trade, and other policy actions. Negation is an aggressive government response that denies the alleged universality of human rights and rejects criticism as an insult to its sovereignty.
It is important to continue to put pressure on problematic countries at this crucial moment, and the international human rights system can help justify the universality of human rights. Countries often make tactical concessions in the hope of softening criticism in the form of the release of political prisoners, the relaxation of some of the most serious restrictions on civil liberties, and the withdrawal of some of the most serious human rights abuses. Ratification of a human rights treaty could be another possible concession.
Governments tend to overlook the fact that these concessions, under protection, help mobilize and strengthen local groups promoting further human rights reforms with the help of international networks. Domestic organizations are working with international networks to put pressure on governments “from below” and “from above.” Regular and long-term use can benefit from strong country pressure. The government can no longer fundamentally deny the existence of human rights after making tactical concessions.
They gradually lose control of the process they started. National and international groups take advantage of the verbal advocacy of leaders’ human rights against them to demand the actual implementation of human rights. During this period of “controlled liberalization,” the former regime was often divided between reformers and rebels. Repression of domestic opposition is rarely an option unless the country is strong enough to withstand the negative effects of the government (for example, the Tiananmen Square Incident in China). As a result, reformist factions often dominate, increasing the potential for further reforms.
When pressure is high enough, human rights improvements are no longer ad hoc but at the administration’s sole discretion and begin to be institutionalized by legislative or constitutional changes. At this point, human rights have reached a normative position, and the government no longer rejects human rights complaints as an intrusion into domestic affairs. In the final stages, government behavior complies with human rights norms, either because the government has changed sufficiently or has been resigned and replaced by a former opposition that promised to respect human rights. Human rights abuses can still occur at this point, but they are no longer publicly prosecuted by government officials, and their perpetrators may be prosecuted under public law.
Ratification is an expression of the stage of normative status. If so, there is a strong link between ratification and human rights progress, especially since the process of improving rights has already begun. It also suggests that ratification is a result, not a cause, of human rights progress. Ratification, on the other hand, can be included in tactical concessions, as already mentioned. Then, ratification, coupled with the official approval of the government for the validity of human rights, could contribute causally to the improvement of human rights by increasing attention, surveillance, and reporting and working with indigenous groups to cross the border. Rights that allow cross-network to ease pressure on countries that violate human rights.
Neither the (neo) realistic approach nor the institutionalist approach suggests that international human rights treaties are of great value. Indeed, such treaties can exacerbate the problem of human rights abuses. As mentioned earlier, regime theory has more hopeful results, but it is only experimental. The remaining two theories and cross-border legal process models provide positive predictions. However, in liberal theory, the effect of ratification of the treaty probably depends on how democratic the domestic political system is, and in the theory of cross-border human rights networks, the effect is vibrant with strong international ties. It depends on the existence of human rights civil society.
There are two main practical considerations when it comes to communication standards. First, the official communication model of the United Nations Center for Human Rights looks simple at first glance. To maximize the efficient use of the Elective Protocol, the petitioner must investigate the issue in detail to identify the issue under international law. Second, to claim that the ICCPR law applies to a situation, it is not enough to claim that the law applies. This is especially important if the allegations raise serious questions about the interpretation of these rights.
Legal counsel should use freely available international documents, such as the Commission’s previous views, general comments, and in some cases, the Commission’s final conclusions on state reports. If necessary, you should refer to the comprehensive procedural law of the European Court of Human Rights (European Court of Justice). The Court of Justice of the European Court’s ruling is not binding on the Commission, but it does provide important guidance and persuasiveness. Since this is a comprehensive organization of international human rights law and many of the members of the Commission come from European countries, European case law can influence the Commission’s decisions.
Aside from the interest in defending that position, the government should, in the long run, thoroughly discuss in front of the Commission the legal reasons it considers to be publicly known. Thinking about it. Despite the generally poor quality of communication so far, the government has not taken advantage of the weakly presented issues and has not provided important information to the Commission. This is not just personal or professional legal ethics but also has to do with the need to act in good faith. According to the Commission’s procedural rules, the role of the State party is to provide “written observations and explanations” rather than just a defensive response. In other words, it is the responsibility of the State to ensure that the Commission receives the information it needs to form its views.
In conclusion, in the absence of civil society or a pure dictatorship, an increase in individual communication procedures under international human rights treaties is generally ineffective and can exacerbate the situation. This provides preliminary evidence of Hathaway’s work that such countries can exercise the expressive role of ratification of the Convention unaltered. Like them, the more democratic the country, the more it turns out that ratification of the treaty benefits human rights. In addition, there are signs that the better the civil society of a country, the better the ratification, and the citizens of that country are more likely to participate in international NGOs.
It supports both liberal beliefs and the concept of a global human rights network. There is no doubt that the ratification of the treaty had a positive impact on human rights. In most cases, for successful ratification of the treaty, national groups, political parties, individuals, and civil society persuade, persuade, and in some cases enforce the government to fulfill its formal promise to improve human rights protection. Hafner-Burton and Tsutsui correctly state that the strength of civil society is beneficial to human rights, but it often depends on how it interacts with the ratification of the Convention.
Creating a personalized grievance mechanism for violations of international humanitarian law raises many interesting issues. Finding the answer to all of them can be difficult, but not so serious that it is impossible to develop a monitoring agency that can accept individual complaints. Indeed, there are many compelling reasons to establish such an organization. It bridges the gap between humanitarian and human rights law in terms of protection and recognizes the similarities between the two areas of law aimed at protecting individuals. At the same time, the establishment of a dedicated mechanism for monitoring compliance with international humanitarian law recognizes the uniqueness of this law and maintains its own scope. As mentioned above, The Hague’s appeal for peace and justice in the 21st century proposes a mechanism for individual complaints about violations of international humanitarian law as part of the comprehensive theme of replacing the laws of violence with law.
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