Article 11 establishes the CESCR’s competence to initiate an inquiry into
‘grave or systematic’ violations of ICESCR rights when it receives
‘reliable’ information that indicates the existence of such violations. In order to be bound by the procedure, a State Party to the OP-ICESCR must
‘opt-in’ by making an affirmative declaration accepting the CESCR’s competence under Article 11.2 The inquiry procedure is investigatory in nature and accommodates active fact-finding by the CESCR, including an on-site visit to the territory of the State Party concerned if the latter consents. The CESCR’s investigatory role is coupled with a mandate for cooperation with the State Party: It is required to seek the State Party’s cooperation during all stages of an inquiry. However, if the State Party refuses to cooperate, the CESCR retains the authority to initiate and conduct an inquiry without an on-site visit. The CESCR is required to conduct an inquiry confidentially.
1 Respectively GA Res 63/117, UNGAOR, 63d Sess, Supp. No. 49, UN Doc A/RES/
63/117, (2008); G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N.
Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976.
2 OP-ICESCR, Article 11(1).
Article 11 applies only to violations that are either ‘grave’ or
‘systematic’ in nature. The interpretation of these threshold elements is addressed in detail in Section 4, below, but may be summarised as follows:
The term ‘grave’ qualifies the severity or seriousness of the violations at issue; and the term ‘systematic’ refers to violations that are recurrent in nature, involve large numbers of victims or occur on a wide geographic scale, and are tolerated, authorised or instigated by the State, including a persistent failure by the State to take effective action to prevent and respond to a pattern of violations.
The procedural framework of Article 11 follows the structure of the United Nations (UN) inquiry procedures on which it was modelled;
namely, the procedures established in Article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (OP-CEDAW)3 and Article 20 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).4 The main stages of Article 11 proceedings are: the preliminary consideration of information submitted to, and obtained by, the CESCR; the CESCR’s decision regarding whether to establish an inquiry; its activities pursuant to the inquiry, including an on-site visit if the State Party consents; its evaluation of the information gathered in the course of the inquiry; its adoption of findings, comments and recommendations; the publication of the report of the inquiry; and follow-up. The Provisional Rules of Procedure for the OP-ICESCR (Rules of Procedure or Rule(s)) adopted by the CESCR in 2012 set out details regarding proceedings and the CESCR’s methods of work under Article 11.5
Inquiry proceedings are initiated by the CESCR at its discretion when it is in receipt of reliable information indicating the existence of grave or systematic violations by a State Party that has ‘opted in’ to the procedure.
The CESCR is authorised by Article 11(3) and OP-ICESCR Rules 26(3) and 28(1) to designate one or more of its members to assist it in assessing whether an inquiry is warranted and, if that decision is affirmative, to conduct the inquiry. The use of designated representatives is the regular practice under CAT Article 20 and the OP-CEDAW and is essential to the feasibility of the procedure. However, the decision to begin preliminary consideration of information in connection with a possible inquiry, the
3 Optional Protocol to the Convention on the Elimination of Discrimination against Women, G.A. res. 54/4, annex, 54 U.N. GAOR Supp. (No. 49) at 5, U.N. Doc. A/54/
49 (Vol. I) (2000), entered into force 22 Dec. 2000.
4 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, Annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N.
Doc. A/39/51 (1984), entered into force June 26, 1987 (Convention Against Torture).
5 CESCR, Provisional rules of procedure under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted by the Committee at its 49th session (12-30 Nov. 2012), ECOSOC Doc. E/C.12/49/3, Jan. 15, 2013 (OP-ICESCR, Rules of Procedure).
decision to establish an inquiry, and the final outcome of an inquiry must be agreed by the CESCR as a whole.
The outcome of an inquiry takes the form of the CESCR’s findings regarding the facts, conclusions regarding possible breaches of the ICESCR, comments related to its findings, and recommendations to the State Party. Like the CESCR’s other jurisprudence, these are non-binding.
Recommendations can encompass a broad range of preventive and remedial measures at the systemic level, as well as measures tailored to particular aspects of the violations. Although individualised remedies are not available under Article 11, the CESCR may indicate specific types of remedies that should be made available to identified groups of victims.
After the CESCR agrees upon its findings, comments and recommendations, they are transmitted to the State Party. The State Party has a six-month period within which to submit its observations in response.
The confidentiality requirement does not apply to the outcome of an inquiry. Article 11(7) provides for the publication of a summary account of the inquiry in the CESCR’s annual report.6 Practice under CAT Article 20 and the OP-CEDAW indicates that, in addition to this summary account, the CESCR can also issue a lengthier report that details its activities in the inquiry, the facts pertaining to the alleged violations and their causes, its analysis of the facts and law, and its recommendations, together with the State Party’s observations in response to the CESCR’s analysis and conclusions.
Follow-up to an inquiry includes the measures described in Article 12 and such other formal or informal procedures as the CESCR may decide to develop. Article 12(1) authorises the CESCR to invite the State Party to include in its report under Articles 16 and 17 of the ICESCR information regarding any measures taken in response to an inquiry. Article 12(2) stipulates that at the end of the six-month period provided in Article 11(6), the CESCR may request the State Party to provide information on the measures it has taken in response to the inquiry.
The State Party’s obligation under Article 13 to take protection measures for the benefit of individuals communicating with the CESCR pursuant to the OP-ICESCR applies to the inquiry procedure as well as the communications procedure.
The Article 11 procedure fits squarely within the paradigm of the inquiry procedures under other UN human rights treaties. In addition to CAT Article 20 and the OP-CEDAW, these include Article 6 of the First Optional Protocol to the Convention on the Rights of Persons with
6 For analysis of para. 7, see Section 3.5 below.
Disabilities (First OP-CRPD)7 and Article 13 of the Third Optional Protocol to the Convention on the Rights of the Child (Third OP-CRC).8 These four procedures and the Article 11 procedure share a common function and structure.
The OP-CEDAW, OP-CRPD and Third OP-CRC procedures all apply to ‘grave or systematic’ violations, and CAT Article 20 applies to the
‘systematic’ practice of torture. Apart from the obvious differences in their normative bases, the major distinction between the Article 11 procedure and these other inquiry procedures is the ‘opt-in’ character of Article 11.
All four of the other procedures require States Parties to ‘opt-out’ by entering a declaration at the time of signature or ratification indicating that they do not recognise the competence of the supervisory committee to conduct inquiries.9
The inquiry procedure established in CAT Article 20 was the first of its kind under a UN human rights treaty. It represented a significant innovation in UN human rights treaty-monitoring mechanisms and served as the model for the OP-CEDAW inquiry procedure. The OP-CEDAW provided the template for the Article 11, the CPRD and the Third OP-CRC procedures. Article 11 follows the OP-CEDAW in covering all rights guaranteed under the main treaty. Paragraphs 2-6 of Article 11, concerning the scope of application and the main stages of proceedings, replicate OP-CEDAW Article 8, paragraphs 1-5. Paragraph 7 of Article 11 tracks CAT Article 20(5).10 Article 12 of the OP-ICESCR, concerning follow-up measures, reproduces OP-CEDAW Article 9 in pertinent part.
7 First Optional Protocol to the International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, G.A. Res. 61/106, Annex II, U.N. GAOR, 61st Sess., Supp. No. 49, at 80, U.N. Doc. A/61/49 (2006), entered into force May 3, 2008.
8 Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, G.A. Res. A/RES/66/13 (2011), entered into force April 14, 2014. The International Convention for the Protection of All Persons from Enforced Disappearance incorporates two procedures with similar features. The first authorises the Committee on Enforced Disappearances to conduct a visit in response to ‘reliable information indicating that a State Party is seriously violating the provisions’ of the Convention and the second authorises the Committee to bring situations of widespread and systematic disappearances to the attention of the U.N. General Assembly. Neither has the broad investigatory function characteristic of the other UN inquiry procedures and neither appears designed to result in authoritative findings regarding violations. International Convention for the Protection of All Persons from Enforced Disappearance, G.A. res. 61/177, U.N. Doc. A/RES/61/177 (2006), entered into force Dec. 23, 2010, Articles 33 and 34.
9 Convention Against Torture, Article 28(1); OP-CEDAW Article 10(1); OP-CRPD Article 8; Third OP-CRC Article 13(7).
10 CEDAW Articles 8-10 do not mention publication of inquiry reports, but OP-CEDAW Article 12 provides that the Committee on the Elimination of Discrimination against Women (CEDAW) will publish a summary of its activities under the OP-CEDAW in its annual report.
A relatively small number of inquiries have been concluded under the CAT Article 20 and OP-CEDAW procedures.11 As of August 2014, eight inquiries had been concluded under CAT Article 20 since 1988, when the Committee against Torture (CAT) began its work, and one inquiry had been concluded under the CEDAW since 2000, when the OP-CEDAW entered into force.12 The underutilisation of these procedures is not attributable to an unwillingness among States to be bound by an inquiry procedure: Only twelve of the 155 States Parties to the Convention Against Torture have opted out of Article 20;13 and just five of the 105 States Parties to the OP-CEDAW have opted out of the Article 8 procedure.14
The CAT Article 20 inquiries concerned allegations of systematic torture in a geographically diverse group of States Parties: Turkey, Egypt, Peru, Sri Lanka, Mexico, Serbia and Montenegro, Brazil and Nepal.15 With the exception of Egypt and Nepal, the States Parties involved all agreed to cooperate with the CAT, although not necessarily with all the CAT’s specific requests for information or access to particular sites or individuals.16 All except Egypt and Nepal agreed to on-site visits by the CAT’s designated representatives. All eight inquiries were initiated in
11 As of August 2014, no inquiries had been conducted under the OP-CRPD or the Third OP-CRC.
12 As of August 2014, the CEDAW had initiated but not concluded two other inquiries:
The final report of one was pending and an on-site visit had been completed in the second.
13 Status as at 8 August 2014.
14 Status as at 8 August 2014.
15 Report of the Committee Against Torture, Summary account of the results of the proceedings concerning the inquiry on Turkey, 48 U.N. GAOR Supp. (No. 44), U.N. Doc. A/48/44/
Add.1, 15 Nov. 1993 (CAT Turkey inquiry report); Report of the Committee Against Torture, Summary account of the results of the proceedings concerning the inquiry on Egypt, 51 U.N.
GAOR Supp. (No. 44), paras. 180-222, U.N. Doc. A/51/44 (1996) (CAT Egypt inquiry report); Report of the Committee Against Torture, Summary account of the results of the proceedings concerning the inquiry on Peru, 56 U.N. GAOR Supp. (No. 44), paras. 144-193, U.N. Doc. A/56/44 (2001) (CAT Peru inquiry report); Report of the Committee Against Torture, Summary account of the results of the proceedings concerning the inquiry on Sri Lanka, 57 U.N. GAOR Supp. (No. 44), paras. 123-195, U.N Doc. A/57/44 (2002) (CAT Sri Lanka inquiry report); Report of the Committee Against Torture, Summary account of the results of the proceedings concerning the inquiry on Mexico, 58 U.N. GAOR Supp. (No.
44), paras. 147-153, U.N. Doc. A/58/44 (2003); Report on Mexico produced by the Committee under Article 20 of the Convention and reply from the Government of Mexico, U.N.
Doc. CAT/C/75, 26 May 2003 (CAT Mexico inquiry report); Report of the Committee Against Torture, Summary account of the results of the proceedings concerning the inquiry on Serbia and Montenegro, 59 U.N. GAOR Supp. (No. 44), paras. 156-240, U.N. Doc. A/
59/44 (2004) (CAT Serbia inquiry report); Report of the Committee Against Torture, Summary account of the results of the proceedings concerning the inquiry on Brazil, 63 U.N.
GAOR Supp. (No. 44), paras. 64-72, U.N. Doc. A/63/44 (2008); Report on Brazil produced by the Committee under Article 20 of the Convention and reply from the Government of Brazil, U.N. Doc. CAT/C/39/2, 3 Mar. 2009 (CAT Brazil inquiry report); Report of the Committee Against Torture, Summary account of the results of the proceedings concerning the inquiry on Nepal, 67 U.N. GAOR Supp. (No. 44), pp. 177-179, U.N. Doc. A/67/44 (2012); ibid, pp. 273-308 (Annex XIII, Report on Nepal adopted by the Committee against Torture under Article 20 of the Convention and comments and observations by the State Party) (CAT Nepal inquiry report).
16 The Egyptian Government did reply to the CAT’s communications, but its replies were largely non-responsive to the Committee’s questions.
response to requests from non-governmental organisations (NGOs). In all but two of these investigations, the CAT concluded that the State Party concerned had practised systematic torture during the period under examination.17
The single inquiry concluded under the OP-CEDAW as of August 2014 examined the murders and disappearances of women in Mexico.18 The Government of Mexico cooperated fully in the inquiry and permitted an on-site visit. Like the CAT Article 20 inquiries, the OP-CEDAW Mexico inquiry was triggered by an NGO request. The Committee on the Elimination of Discrimination against Women (CEDAW) concluded that violations of a grave and systematic nature had occurred.19
Although limited, the practice under CAT Article 20 and the OP-CEDAW offers guidance for the interpretation and application of the Article 11 procedure, given that the latter was based on, and raises a number of legal and procedural questions in common with, those procedures.20 A thorough discussion of the implications of practice under those procedures, including reasons for their underutilisation, is beyond the scope of this chapter. However, practice under CAT Article 20 and the OP-CEDAW that is of particular relevance to an understanding of the Article 11 procedure is noted. Of course, the Article 11 procedure must be interpreted and applied in the context of the OP-ICESCR and the ICESCR, with reference to the legal and methodological issues specific to an examination of grave or systematic violations of the ICESCR.
17 In a widely criticised decision, the CAT found that the practice of torture in Sri Lanka was not systematic in nature. In the inquiry on Serbia and Montenegro, it found that torture had been practised systematically prior to October 2000, but was no longer systematic in nature after that date.
18 Report of the CEDAW, 59 U.N. GAOR Supp. (No. 38), paras. 393-408, U.N. Doc A/59/
38 (2004) (summary account of CEDAW Mexico inquiry); Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under Article 8 of the Optional Protocol to the Convention, and reply from the Government of Mexico, U.N. Doc.
CEDAW/C/2005/OP.8/MEXICO, 27 January 2005 (CEDAW Mexico inquiry report).
As of this writing, reports on two other inquiries conducted by the CEDAW are pending. The first concerns alleged violations of reproductive rights in the Philippines.
The second concerns alleged murders and disappearances of Aboriginal women and girls in Canada.
19 CEDAW Mexico inquiry report, ibid, paras. 259-260.
20 The OP-ICESCR Rules of Procedure related to Articles 11 and 12 largely parallel the rules of procedure for the CAT Article 20 and OP-CEDAW, inquiry procedures. The rules of procedures for the OP-CRPD and Third OP-CRC inquiry procedures also follow the same model. See CAT, Rules of Procedure, U.N. Doc. CAT/C/3/Rev.6, 13 Aug. 2013 (CAT, Rules of Procedure); Report of the CEDAW, 56 U.N. GAOR Supp.
(No. 38), U.N. Doc. A/56/38 (2001), Annex I, as amended by 62 U.N. GAOR Supp.
(No. 38), U.N. Doc. A/62/38 (2007), Chap. V. (CEDAW, Rules of Procedure); CRPD, Rules of Procedure, 3rd session, 22-26 Feb. 2010, U.N. Doc. CRPD/C/4/2, 13 Aug. 2010 (CRPD, Rules of Procedure); CRC, Rules of procedure under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, U.N. Doc. CRC/C/
62/3, 8 April 2013 (CRC, Rules of Procedure Third OP-CRC).