Accessibility of the Procedure to Victims, NGOs and Civil Society

Several features of the inquiry procedure enhance its accessibility to victims, their advocates, NGOs, and civil society groups, including groups whose access to justice is restricted by social or economic factors. Chief among these is the absence of admissibility requirements. In particular, the absence of requirements related to standing, victim status, and the exhaustion of domestic remedies removes procedural obstacles that are frequently insurmountable for victims and their advocates under human rights complaints procedures. Information can be submitted regarding situations in which individuals are reluctant to be identified due to a danger of reprisal or the factual circumstances surrounding the violations makes it impractical or impossible to identify individual victims.

95 Rule 27(1), OP-ICESCR, Rules of Procedure (n. 5 above).

96 Rule 28(1), OP-ICESCR, Rules of Procedure, ibid.

Individuals or groups submitting information do not need to demonstrate any relationship to the victims of the alleged violations or any particular expertise regarding the issues raised by the situation. The absence of an exhaustion requirement is vital to the accessibility of the inquiry procedure, given the reality that domestic remedies for violations of ICESCR rights are frequently non-existent, ineffective or inadequate.

The absence of restrictions on the form or sources of information that can be considered by the CESCR may mitigate the effects of social and economic barriers that would limit the use of the procedure by victims and community groups, including the obstacles created by a lack of literacy and legal literacy. The flexibility of the process by which the CESCR can seek and receive information in connection with an inquiry also has advantages for advocates. NGOs can benefit from repeated opportunities to present additional information as it becomes available and to refine arguments about the law and facts in response to the CESCR’s concerns. Sources other than the author(s) of an inquiry request can submit information directly to the CESCR, including groups involved in monitoring or advocacy related to the alleged violations, experts on the issues under examination, or national human rights institutions.

An on-site visit contributes significantly to the accessibility of the procedure, as it allows victims, witnesses, NGOs and the representatives of community-based groups to interact directly with the CESCR’s representatives. Interviews and hearings during a visit provide an opportunity to shape the direction of the CESCR’s investigation and permit those most affected by the violations to describe their experiences, share their knowledge, and communicate their concerns in their own voices.

Finally, the CESCR’s competence to request protection measures supports the accessibility of the inquiry procedure by offering a means by which victims, witnesses, and others can seek international scrutiny of ill-treatment or intimidation against them in connection with their interactions with the CESCR.⁹⁷

The major structural constraints on the accessibility of the inquiry procedure are the confidential nature of proceedings and the requirement that the CESCR seek the State Party’s cooperation. The confidentiality requirement prevents the authors of a request from ascertaining the status of proceedings and content of the CESCR’s deliberations, except insofar as the information is available informally or can be inferred from the CESCR’s requests for information. It thus limits their ability to respond

97 OP-ICESCR, Article 13; OP-ICESCR Rules of Procedure (n. 5 above), Rule 31(4).

These guarantees apply to ill-treatment, intimidation or reprisals by non-State actors to the extent that the State has obligations to prevent and respond to violations by non-State actors.

directly and in the most effective manner to the evidence and arguments presented by the State Party. It similarly hampers their ability to address the CESCR’s concerns regarding the evidence, or the CESCR’s understanding of domestic law, the Article 11 threshold, or the substantive rights and obligations implicated by the alleged violations. Strictly interpreted, the confidentially requirement means that the authors of an inquiry request cannot ascertain the status of the CESCR’s proceedings, except insofar as the CESCR’s requests for additional information suggest a conclusion about the status of proceedings or the CESCR seeks their input regarding the details of a visit and/or invites them to meet with the designated representatives during a visit.⁹⁸ In addition, the confidentiality requirement affects the extent to which information about an inquiry can be incorporated into other advocacy initiatives related to the violations.

The implications of the confidentiality requirement for advocates are thus twofold: It hinders advocacy aimed at influencing the CESCR and it constrains the manner in which inquiry related activities can be integrated into their broader strategies for addressing the alleged violations.

The CESCR’s mandate to seek the State Party’s cooperation in an inquiry creates strategic disadvantages for advocates and introduces delays that undermine the utility of the procedure for advocacy purposes. Efforts to obtain the State Party’s cooperation give the State access to information not available to the authors of a request, including, at a minimum, the status of proceedings; details regarding the alleged violations that are the CESCR’s main focus of concern; and the basic parameters of the record before the CESCR. Although the CESCR is expected to maintain confidentiality regarding the identity of its sources of information where necessary to protect them from retaliation or threats of reprisal, the authors of an inquiry request will be strategically disadvantaged by the State Party’s access to information. Coupled with the confidentiality requirement, the CESCR’s duty to seek the State Party’s cooperation opens the door to pressure by the State Party on the CESCR to refrain from initiating an inquiry and/or to alter the manner in which an inquiry proceeds.

In addition to these structural constraints, there are a number of practical limitations on the accessibility of the inquiry procedure to victims and disempowered groups. Chief among these are the lack of access to information about the ICESCR and the inquiry procedure and the lack of capacity to document violations and address technical aspects of domestic and international law. The potential value of an inquiry must be weighed against the procedural disadvantages described above and the human and

98 When consent to a visit has been obtained, normal practice under the CAT Article 20 and OP-CEDAW is for the treaty body (through the Secretariat) to invite the authors of the inquiry request and other parties that have submitted information to identify individuals to be interviewed and locations to be visited, and to request NGOs to facilitate access to victims and witnesses.

financial resources needed to support inquiry related activities, including coordination among national and international groups. Involvement in an inquiry can be a resource intensive undertaking for NGOs, victim support groups and other civil society groups. In addition to the resources expended in preparing submissions, they are likely to bear the costs associated with assembling victims and witnesses to meet with the CESCR’s designated representatives during a visit.