Duplication and Divergence in the Work of the United Nations Human Rights Treaty Bodies

Article excerpt

This panel was convened at 9:00 a.m., Saturday, March 26, by its moderator, Christina Cerna of the Organization of American States, who introduced the panelists: Sarah McCosker of the Australian Commonwealth Attorney-General's Department; Suzanne Nossel of the U.S. Department of State; Nigel Rodley of the University of Essex; and Ibrahim Salama of the Office of the United Nations High Commissioner for Human Rights, Human Rights Treaties Division. **

INTRODUCTORY REMARKS BY CHRISTINA CERNA

International human rights law is currently made by the following institutions: (1) three regional human rights courts (the European Court of Human Rights, the Inter-American Court of Human Rights, and the African Court of Human Rights (there is no UN human rights court, although some scholars have called for the creation of one)); (2) three regional human rights commissions (the Inter-American Human Rights Commission, the African Human Rights Commission, and the Asian Human Rights Commission (under ASEAN); and (3) nine (soon to be ten) United Nations human rights treaty bodies. Add to this the eight UN Country Rapporteurs and the 33 Special Procedures or thematic mandates assumed by the Human Rights Council, many of whom, if not all, also contribute to the creation of international human rights law.

In some sense we are fortunate that most of the world does not know about these international instances or know how to use them, because if they did, these bodies would be flooded with petitions. In 2001, Anne Bayefsky, in her study of UN treaty bodies entitled The UN Human Rights Treaty System: Universality at the Crossroads, noted the large number of states that were five, ten, 15, or even 20 years delinquent in the presentation of their first or periodic reports to the UN Human Rights Committee. She speculated that if all the countries filed their reports on time, the Committee would be unable to function.

I am personally not as concerned about the divergence aspect of the subject of our panel, since there are extremely few examples of contradictory jurisprudence of which I am aware. On the other hand, I consider the issue of duplication to be the most important issue before the regional human rights treaty bodies, and I would like to address this issue as a backdrop for our panelists' discussion of duplication in the UN treaty bodies.

At the regional level--not to speak of my own system, the Inter-American Commission of Human Rights--we know that the European Court of Human Rights (ECHR) is overwhelmed by its own success. As of January 1, 2011, the ECHR had approximately 140,000 pending cases--that is, 140,000 admitted cases, not pending petitions. To provide an idea of the ECHR's work capacity, last year it issued 1,500 decisions. With the current staff of almost 300 lawyers and the same procedures, it should take the ECHR 93 years to issue decisions on this backlog of pending cases, not to mention what to do with the 50,000 new applications received each year.

Over half of the ECHR's cases are pending against five countries: Russia (28.9%), Turkey (10.9%), Romania (8.6%), Ukraine (7.5), and Italy (7.3%). Next in line are Poland, Moldova, Bulgaria, Serbia, and Slovenia. Except for Italy and Turkey, these countries have only recently joined the Council of Europe. Half of the judgments of the ECHR, since its establishment, have concerned Article 6 of the European Convention on Human Rights, that is, violation of the fairness and length of judicial proceedings. The fact that fairness and length of proceedings constitute the subject matter of approximately 50% of the ECHR's case load underlines the problem of subsidiarity. The international instance exists because the individual has been denied justice at the domestic level, and that is why a petitioner is required first to exhaust domestic remedies. A petitioner cannot exhaust domestic remedies if these remedies do not exist, they take an inordinate time to exhaust, or the petitioner has been denied access to them. …