The End of Individual Petition for Human Rights?
By Dr Noelle Quenivet. ILHRU. UWE, Bristol.
If the United Kingdom were to withdraw from the European Convention on Human Rights, British citizens as well as aliens present on its territory would be denied the individual right to protect their human rights on the international/regional level.
The individual right to petition is often seen as a victory over State powers to restraint the rights of its own citizens and aliens present on its territory. States are rather keen on ratifying all kinds of human rights treaties that define clear rights for individuals and thus obligations, whether positive or negative. But States are less keen to ratify treaties that provide concrete implementation systems such as a petitioning mechanism. Having a good reputation is important in international affairs but it does not go as far as allowing an international body to ensure that the treaty provisions are correctly and adequately implemented. States tend to accept monitoring mechanisms which oblige them to submit reports on a regular basis as there is no sanction for failing to submit a report or to comply with the treaty provisions. After all, the system is one based on dialogue (see e.g. Human Rights Committee monitoring compliance with the International Covenant on Political and Civil Rights) which concludes with the monitoring body issuing some observations and recommendations that can be easily forgotten until the next report needs to be submitted.
Recognising the inherent flaws of such monitoring systems States agreed to introduce, often in optional protocols, mechanisms whereby individuals could petition the monitoring body (e.g. Optional Protocol to the International Covenant on Civil and Political Rights, Optional Protocol to the Convention on the Rights of the Child on a communications procedure, Optional Protocol to the Convention on the Rights of Persons with Disabilities). The petition system of the ICCPR is a case in point. If the Human Rights Committees finds a violation of the ICCPR it often indicates an appropriate remedy (e.g. payment of compensation or release from detention) and the State is then invited to provide information on how it has given effect to the Committee’s Views. However, as the monitoring body issues observations that are not legally binding and the follow-up mechanisms are not particularly robust, States that do not take their human rights obligations seriously (and thus fail to comply with Article 2(3) ICCPR) do not provide individuals with adequate remedies. Yet, other States, in good faith, comply with the Views of the Committee and, what is more, individuals value the fact that an authoritative decision, irrespective of compensation or other remedies, has been made on their case.
Clearly the United Nations petitioning system is deficient but this is what those living under the jurisdiction of the UK would be left with should the UK withdraw from the European Convention on Human Rights. In fact, it would be worse than that because although currently six treaty bodies of the United Nations offer the right to petition, the UK has only ratified two of them: the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women and the Optional Protocol to the Convention on the Rights of Persons with Disabilities. Unless one falls into the category of a woman or disabled, there is no right of petition.
The UK is highly reluctant to provide individuals with a right to petition international human rights committees set up under the United Nations auspices. In 2004 following a comprehensive review of the United Kingdom’s position under international human rights treaties the UK agreed to ratify the petitioning mechanism under CEDAW on the condition that it would act as a pilot (HC Deb 22 July 2004 vol 424 c85WS). An independent review carried out in 2008 convinced the then UK government not to ratify other petitioning mechanism on the international level.
The Parliamentary Joint Committee on Human Rights that evaluated the review questioned the reasons for the UK to refuse the right of individual petition for other treaties, bearing in mind that comparable States had done so (e.g. EU Member States, Australia) and the UK had accepted the human rights standards enshrined in these conventions (Joint Committee on Human Rights, 17th report, 2004-2005, 23 March 2005, para 10). The following arguments for not accepting individual petition were adduced in the Review Report (Joint Committee on Human Rights, 17th report, 2004-2005, para 13):
§ “A high level of protection for the rights protected by these treaties is already afforded by national law, including under the Human Rights Act 1998.” Obviously the withdrawal from the European Convention on Human Rights and the likely concurrent annulment of the Human Rights Act 1998 would mean that this justification does not hold anymore.
- “The UN Committees have non-judicial status only, with no ability to award damages, and can issue only non-binding decisions, and the practical value of individual petition to the individual is therefore unclear”. Oddly, it is the very fact that the rulings of the European Court of Human Rights (on e.g. prisoners right to vote) are legally binding that has angered the current government!
- “Preparation of submissions on petitions to UN Committees could impose a burden on public funds, in particular if ‘individual petition were used extensively as a means of seeking to explore the legal meaning of a treaty’s provisions’, and this is difficult to justify since the process will not produce a binding legal judgment.” This is easily counter-argued by the fact that often petitions are inadmissible because of the obligation for individuals to demonstrate that they have exhausted the domestic remedies. In 2005 the Joint Committee on Human Rights pointed out that “[t]he judicial nature of the Strasbourg procedure, and the availability of compensation, mean that it is likely that applications under the UN individual complaints procedures will be made only where the matter at issue falls outside the terms of the ECHR, since a case which is being or has been considered by the ECtHR will not be admissible before the UN treaty bodies” (para 24). Implied in this discussion is that the ECHR was, owing to it providing an effective mechanism towards the protection of individual human rights, the default implementing mechanism on the international level. If the UK were to withdraw from the ECHR one would expect individuals to be granted the right to petition international human rights committees (at least to the Human Rights Committee) but that is not the case.
Unless the UK decides to ratify the instruments granting individuals the right of petition on the international law, the UK would if it were to withdraw from the ECHR leave its citizens and aliens under its jurisdiction with no (effective) legal remedy barring domestic law.