3 Key Features
3.5 Scope of the CESCR’s Authority to Establish and Conduct an Inquiry
No Requirement for State Party’s Consent or Cooperation
The CESCR’s authority to establish an inquiry is not conditioned on the consent or cooperation of the State Party concerned. As indicated by the term ‘may’ in Article 11(3), the decision to establish an inquiry is entirely at the CESCR’s discretion once it determines that reliable information indicates the existence of violations reaching the threshold.67 Article 11(4) directs the CESCR to seek the cooperation of the State Party ‘at all stages of the proceedings’, indicating that the CESCR is expected to make repeated efforts to secure the State Party’s cooperation. However, the CESCR has the competence to proceed with an inquiry if the State Party refuses to cooperate or to permit an on-site visit. Practice under the CAT Article 20 procedure confirms this interpretation. The CAT has twice proceeded with an inquiry without an on-site visit.68
Article 11(4) reflects the reality that the efficacy of an inquiry is significantly enhanced by the State Party’s cooperation. Non-cooperation restricts the scope of the treaty body’s fact-finding activities, not only by precluding a visit but also by foreclosing its access to information obtainable only from the State and to State officials whose roles and responsibilities are closely linked to the alleged violations. The CAT’s inquiry on Egypt illustrates the difficulty of resolving contradictory factual accounts on the basis of written submissions. Although it established a
66 The CAT’s rules of procedure authorise it to issue communiqués concerning closed meetings ‘for the use of the information media and the general public regarding its activities under Article 20 of the Convention’. CAT, Rules of Procedure (n. 20 above), Rule 80. Rule 47 of OP-ICESCR Rules of Procedure States that the CESCR may issue press communiqués on its activities under the OP-ICESCR for the use of the media and the general public, but makes no mention of communiqués relating to closed meetings under Article 11. OP-ICESCR, Rules of Procedure (n. 5 above).
67 CAT Article 20(2), OP-CEDAW Article 8(2), OP-CRPD Article 6(2) and the Third OP-CRC Article 13(2) all use the term ‘may’, making the decision to initiate an inquiry a matter of the treaty body’s discretion.
68 Egypt inquiry report (n. 15 above), para. 193 (‘The Committee invited the Government to reply to its request [for a visit] by 17 June 1994 and stated that should no reply or a negative reply have been received by that date, the Committee would continue’ the inquiry); Nepal inquiry report (n. 15 above), para. 13 (‘the Committee decided that, as its continuing efforts to visit the State Party were unsuccessful, it would proceed with the confidential inquiry without a visit’). See also UN Doc. E/CN.6/1997/4 (n. 21 above), para. 103: ‘[Under CAT Article 20] an inquiry may also proceed without the cooperation of the State Party...’
reasoned basis for its findings, the CAT clearly considered that the information before it was incomplete.69 Obviously, an on-site visit does not per se yield a more complete and credible account of the facts. To achieve that result, the treaty body’s representatives must seek information actively prior to and during a visit, respond firmly to any recalcitrance by the State Party regarding access to individuals or locations, and subject the State Party’s justifications for its conduct to rigorous scrutiny.
Notwithstanding the benefits of cooperation, a State Party’s refusal to cooperate or to consent to a visit should not deter the CESCR from conducting an inquiry. Practice under CAT Article 20 confirms the importance of proceeding with an inquiry despite a refusal by the State Party to cooperate, in order to reinforce the principle of accountability for violations. The core functions of the Article 11 procedure are to establish an authoritative record of the facts; present an authoritative decision about whether breaches of the ICESCR have occurred; and identify corrective and preventive measures to be taken if breaches have occurred. Inquiries conducted without the State Party’s cooperation can perform these functions effectively if the CESCR creates the fullest possible record by actively seeking information from a wide range of sources, even if non-cooperation narrows the scope of the issues that can be resolved definitively.
Discretionary Nature of the CESCR’s Decision to Undertake an Inquiry
Not only may the CESCR launch an inquiry without the State Party’s cooperation, but it may decline to establish one even if it has determined on the basis of the information available that an inquiry is warranted.
Certain factors might induce the CESCR to decide against an inquiry that appears to be warranted, such as a belief that it might be possible to address the situation more effectively through informal dialogue with the State Party or a desire to await the outcome of pending action by other human rights bodies. However, it is more likely, and clearly desirable, that in such circumstances the CESCR would not take a formal decision against an inquiry but would keep the situation under consideration until it is satisfied that the alleged violations have been addressed or that the allegations were unfounded.
69 Egypt inquiry report (n. 15 above), at paras. 206, 218 and 220. The CAT identified the criteria used in assessing the credibility of the allegations presented: the large number of allegations; their different origins; their consistency as to methods of torture and places where it was practised; and the reliability of the sources in their dealings with the CAT on other matters. Ibid para. 219.
Nothing in Article 11 limits the CESCR’s authority to initiate a new inquiry when another inquiry in still in progress or to initiate inquiries into more than one situation at the same time.70 Summary records of the CAT’s public meetings and its conference room papers indicate that it has maintained ongoing concurrent reviews of the possible need for an inquiry into allegations concerning several different States Parties.71 Informal information indicates that the CEDAW initiated a new inquiry while another was still in the final stages of completion and it has had multiple inquiry requests under concurrent review.
Information Triggering Preliminary Evaluation of the Need for an Inquiry
As noted, the inquiries conducted under CAT Article 20 and the OP-CEDAW were all undertaken in response to requests submitted by NGOs and this is likely to be the norm under Article 11. The OP-ICESCR Rules of Procedure assume that the examination of information under Article 11 will be triggered by the submission of a formal request for an inquiry. Rule 22 states that ‘the Secretary-General shall bring to the attention of the Committee reliable information that is received for the Committee’s consideration indicating grave or systematic violations’ by a State Party.72 However, Article 11 does not refer to a request as the catalyst for the evaluation of information in connection with a possible inquiry: It uses the phrase ‘receives reliable information’ to describe the CESCR’s initiation of proceedings under Article 11.
In their rules of procedure, the Committee on the Rights of Persons with Disabilities (CRPD) and the Committee on the Rights of the Child (CRC) have stated their authority to consider information under their respective inquiry procedures on their own initiative, without receiving a request. The CRPD’s Rules of Procedure provide that it may ‘on its own initiative, compile information available to it, including from the United Nations bodies, for its consideration’ under the Article 6 inquiry procedure.73 The CRC’s Rules of Procedure state that it ‘may, on its own
70 Cf. CAT, Summary Record of the 2nd part of the 835th meeting (40th session, 16 May 2008), U.N. Doc. CAT/C/SR.835/Add.1 (2008), para. 9. However, time constraints created by the treaty body’s overall workload and the lack of adequate financial resources may limit the number of inquiries that can be undertaken concurrently.
71 See, e.g., CAT, Summary Record of the 2nd part of the 835th meeting (40th session, 16 May 2008), U.N. Doc. CAT/C/SR.835/Add.1 (2008).
72 OP-ICESCR Rules 23-24 direct the Secretariat to keep a permanent record of information brought to the CECSR’s attention and to prepare a brief summary of the information for circulation to the members. OP-ICESCR, Rules of Procedure (n. 5 above).
73 CRPD, Rules of Procedure (n. 20 above), Rule 79. Rule 79 clearly refers to the CRPD’s authority to initiate the preliminary consideration stage of an inquiry proprio motu, since Rule 78(1) refers to the transmission by the Secretariat of information ‘that is or appears to be submitted for the Committee’s consideration’ under the inquiry procedure.
initiative, in case of reliable information on the existence of grave and systematic violations … initiate an inquiry’.74 The CAT has not adopted a parallel rule of procedure, but it has been noted in the CAT's internal discussions that the Committee can launch an inquiry without having received a formal request.75
This approach allows a treaty body to follow up on information that comes before it in the course of its other activities under the treaty, rather than waiting to receive a formal request. It gives effect to a central rationale for the inquiry procedure, which is to facilitate a timely response to grave or systematic violations. Information pointing to the occurrence of such violations may come before the treaty body in the context of material regularly presented to it, such as States Parties’ periodic reports, submissions from UN agencies or programmes, and reports by the special mechanisms of the UN Human Rights Council.76 Numerous individual communications against the same State Party in relation to the same types of violations might alert the treaty body to a need to obtain additional information for consideration under the inquiry procedure. Although the CESCR did not include in its Provisional Rules of Procedure a provision stating its authority to decide proprio motu to compile information for consideration under Article 11, it could in the future adopt this approach since it has wide latitude to develop its methods of work.
No Admissibility Criteria
Article 11 does not establish any admissibility criteria. The information before the CESCR need not identify the victims of the alleged violations.
Information submitted anonymously can be considered, although anonymity would affect the CESCR’s assessment of reliability. Prior consideration of the same matter by another human rights body or the CESCR itself does not bar an inquiry. Violations that have been the subject of communications under Article 8 thus could be examined under the inquiry procedure if they meet the Article 11 threshold. The exhaustion rule, which is a significant procedural obstacle under the communications
74 CRC, Rules of Procedure Third OP-CRC (n. 20 above), Rule 31(2). Rule 31(2) clearly refers to the CRC’s authority to initiate the preliminary consideration stage proprio motu, since Rule 31(1) refers to the transmission by the Secretariat of information
‘information that is or appears to be submitted for the Committee’s consideration under Article 13’.
75 CAT, Summary record of the 835th meeting, Consideration of information under Article 20 of the Convention (40th session, 16 May 2008), U.N. Doc. CAT/C/SR.835/
Add.1 (2008), para. 9. See also U.N. Doc. E/CN.4/2006/WG.23/2 (n. 22 above), para. 27 (stating that in an inquiry procedure ‘the Committee does not have to receive a formal complaint and it is up to the Committee to decide to initiate the procedure’).
76 A decision to launch an inquiry may be supported by the treaty body’s prior attention to the violations at issue in the context of the periodic reporting procedure. See, e.g., CAT Nepal inquiry (n. 15 above), paras. 3-6; CEDAW Mexico inquiry (n. 18 above), para. 3.
procedure, does not apply. Information may be submitted and considered at any time after the date on which the alleged violation occurred.
The OP-ICESCR does not address the question of the CESCR’s jurisdiction ratione temporis under Article 11. However, under international law, a State Party to the OP-ICESCR will not be bound by Article 11 in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the OP-ICESCR for the State concerned and before the effective date of its declaration under Article 11(1).77 This restriction concerns the CESCR’s jurisdiction to consider the situation at issue and is not an admissibility requirement as such. When presented with facts that raise a question as to its jurisdiction ratione temporis under Article 11, the CESCR should undertake an analysis along the same lines as the analysis to be carried out in its review of communications to determine their admissibility ratione temporis. In particular, the CESCR should recognise the well-established exception for continuing violations that is incorporated in OP-ICESCR Article 3(2)(b).
Mandatory Elements
Several aspects of Article 11 proceedings are mandatory. When the CESCR receives information that appears to indicate grave or systematic violations by a State Party which has opted into the inquiry procedure, it must carry out a preliminary evaluation to determine whether the information is reliable and whether it points to the existence of grave or systematic violations. 78 If the CESCR reaches an affirmative conclusion on both counts, it must invite the State Party to cooperate in the examination of the information and to submit its observations on the information.79 In the next stage of proceedings, the CESCR’s examination of the available information in order to decide whether to initiate an inquiry must take into account any observations submitted by the State Party.80 As noted, it must obtain the State Party’s consent to an on-site visit during an inquiry. At the conclusion of an inquiry, the CESCR is required to transmit its findings, comments and suggestions to the State Party and allow a period of six months for the State Party to submit its observations in response.81
77 See Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679, entered into force Jan. 27, 1980, Article 28.
78 The language of Article 11(2) and OP-ICESCR Rule 26(2) indicates that this evaluation is mandatory.
79 Article 11(2); OP-ICESCR Rule 27(1). OP-ICESCR, Rules of Procedure (n. 5 above).
80 Article 11(3); OP-ICESCR Rule 27(2). OP-ICESCR, Rules of Procedure (n. 5 above).
81 Article 11(5) and (6); OP-ICESCR Rule 33(1) and (3). OP-ICESCR, Rules of Procedure (n. 5 above).
The CESCR’s Authority to Decide the Content of, and to Publish, Reports
Article 11(7) states that the CESCR ‘may, after consultations with the State Party concerned, decide to include a summary account of the results of [inquiry] proceedings in its annual report’ (emphasis added).82 Paragraph 7 replicates the second sentence of CAT Article 20(5).83 Any suggestion that this language might require the CESCR to obtain the State Party’s consent to publication and/or its agreement to the content of a report is contradicted by long established practice under CAT Article 20(5). The constant practice of the CAT makes clear that it is not required by Article 20(5) to obtain the State Party’s consent to publication of the report or its agreement to the content of the report.84 The CAT considers the decision to publish a summary report a matter of its sole discretion and it has consistently elected to publish.
The CAT developed its approach to the publication of inquiry reports at the outset of its work under Article 20. In its first three inquiries, the States Parties concerned objected to the publication of the CAT’s summary report. In its first inquiry, the CAT decided to publish, notwithstanding the State Party’s objections, and explained that ‘in view of the number and seriousness of the allegations of torture’, the findings and conclusions by the CAT and its designated representatives, and the State Party’s replies, it was ‘convinced that such publication is necessary in order to encourage full respect for the provisions of the Convention in Turkey’.85 In the CAT’s second inquiry, the State Party refused to permit an on-site visit and voiced its opposition to publication of the report in the strongest terms.86 The
82 The OP-ICESCR Rules of Procedure do not elaborate on Article 11(7), but Rule 25 states that the confidentiality requirement is ‘without prejudice to the provisions’ of Article 11(7) and Rule 33(2) states that transmission of findings, comments and recommendations to the State Party is ‘without prejudice’ to Article 11(7). OP-ICESCR, Rules of Procedure (n. 5 above).
83 The OP-CEDAW does not contain a comparable provision, but the CEDAW’s Rule of Procedure 80(2) provides: ‘Before including a summary of the activities undertaken under Articles 8 or 9 … in [its] annual report … the Committee may consult with the State Party concerned with respect to the summary’. CEDAW, Rules of Procedure (n. 20 above).
84 The CAT’s rules of procedure make clear that the decision to publish a summary account of the inquiry in its annual report is entirely a matter of its discretion. Rule 90 states that it ‘may’ decide to publish a summary report and ‘[i]f it decides to include a summary account’ of the inquiry in its annual report, the text of the summary account must be forwarded to the State Party. CAT, Rules of Procedure (n. 20 above). See also UN Doc. E/CN.6/1997/4 (n. 21), para. 104: ‘[The CAT] has the possibility of including a summary of the results of its proceedings in its annual report. Such inclusion is preceded by consultations with the State Party thereon, but the final decision rests with the Committee’ (citing Article 20(5)).
85 CAT Turkey inquiry report (n. 15 above), para. 21.
86 Egypt argued that publication could have ‘highly prejudicial’ repercussions for its relations with the CAT and the purposes of the Convention itself and ‘might ultimately be interpreted as signifying that the Committee is indirectly encouraging terrorist groups not only in Egypt but worldwide’. CAT Egypt inquiry report (n. 15 above), para.
199.
CAT set aside these objections and published the report, reiterating the reasons given in connection with its first inquiry.87 In its third inquiry, the CAT postponed publication of the report for one year, in order to consult the State Party about its objections to publication and obtain from it additional information. The report was published the following year with an acknowledgment of the State Party’s cooperation in the inquiry and a summary of its response to the CAT’s findings and recommendations.88 The State Party’s concerns about publication were resolved by incorporating its comments on the CAT’s conclusions into the report.
This approach, which allows the State Party to register its disagreement with the outcome of an inquiry while preserving the function of the inquiry procedure as an accountability mechanism, has subsequently been followed by the CAT. Article 20 reports note that the CAT invited the State Party to submit its observations on the possible publication of the report, indicate that the State Party agreed to publication,89 and present a synopsis of the State Party’s response to the report or, if a full report is issued, the State Party’s response in full. The publication of the State Party’s observations on the report is in itself beneficial, since it creates an authoritative record of the State Party’s views on the facts, the interpretation of domestic and international law, and any procedural or substantive legal questions concerning the inquiry procedure that may arise.
Article 11(7) should be interpreted in line with the practice of the CAT, which was well-established prior to the drafting of the OP-ICESCR.90 When they chose to incorporate the language of CAT Article 20(5) into Article 11(7), the drafters had been informed of the CAT’s practice by means of background documentation and briefings.91 Nothing in the drafting debates supports an interpretation of Article 11(7) that departs from the established interpretation of CAT Article 20(5).
As to the CESCR’s exercise of its discretion regarding publication, publication should be routine for the reason stated by the CAT with regard to the CAT Article 20 procedure: The publication of an inquiry report is
87 Ibid para. 200.
88 CAT Peru inquiry report (n. 15 above), paras. 155 and 188-89.
89 See, e.g., Report of the CAT, Summary account of the results of the proceedings concerning the inquiry on Brazil (n. 15 above), para. 72; Report of the CAT, Summary account of the results of the proceedings concerning the inquiry on Mexico (n. 15 above), para. 153; CAT Mexico inquiry report (n. 15 above), para. 222.
90 The reports of the CAT’s first six inquiries had all been published by 2004.
91 The Working Group had before it UN Doc. E/CN.6/1997/4 (n. 21 above), which clearly states that the final decision regarding publication rests with the CAT. See UN Doc. E/CN.4/2005/WG.23/2 (n. 21 above), para. 1: ‘[The present report] should be read in conjunction with [U.N. Doc. (E/CN.6/1997/4], which has been made available to the participants in the working group.’ At its second session, the Working Group had an interactive dialogue with an expert panel that included a member of the CAT whose presentation addressed the Article 20 procedure. See U.N. Doc. E/CN.4/
2005/52 (n. 21 above), para. 38.
necessary to encourage ‘full respect’ for the provisions of the ICESCR. The public record of an inquiry is central to its utility as an accountability mechanism, in relation to both the particular violations under scrutiny and the future conduct of other States Parties.
3.6 Outcome of the Procedure and Follow-Up