Individual complaints/communications

2.1. Complaints process

The State must recognize the competence of the treaty body to receive individual complaints

The complaint must be brought by the person whose rights have been violated or on her or his behalf

Domestic remedies must be exhausted.

In principle, there is no formal time limit for filing a complaint. However it is preferable that it is submitted as soon as possible. In urgent situations, the treaty body may request the State to grant “interim measures” to prevent “irreparable harm”.

Complaints are considered on the basis of the written information supplied by the complainant, or her or his representative, and the State in closed meetings. The treaty body’s decisions on individual complaints are included in its annual reports. If a violation is found, the State is requested to provide an effective remedy and respond to the treaty body within a set deadline. The remedy recommended will depend on the violations found. The State has a good faith obligation to implement the treaty body’s findings and grant appropriate remedies. However, the views on communications concerning individual complaints are not legally binding.

The treaty body actively encourages the State to implement its decision, including through the State party reporting process. The Human Rights Council, through the UPR process, also encourages States to implement decisions made by treaty bodies.

Although some States do not comply with decisions of treaty bodies, a significant number have granted a variety of remedies to complainants following decisions. These decisions also influence the development of international standards by creating a body of quasi-judicial interpretations of the treaties.

In regards to indigenous peoples, decisions by the Human Rights Committee and the Committee on the Elimination of Racial Discrimination have had significant influence on the development of international human rights standards. It is envisaged that the Declaration will provide further impetus for the work of the treaty bodies.

2.2. The role of NHRIs in the treaty body complaints procedure

NHRIs can disseminate the decisions of treaty bodies concerning individual complaints, as well as follow up on relevant decisions and advocate for their State to comply with them.

The findings of the treaty bodies provide an important source of jurisprudence that NHRIs can use in their work, including advocating for law and policy reforms. Consequently, NHRIs should monitor and record findings by treaty bodies that relate to indigenous peoples’ human rights and use them in their programmes and activities.

3. General comments

General comments are valuable sources of authoritative information to inform the normative content of the human rights treaties. NHRIs can utilize these general comments to guide recommendations to their State about how best to implement its human rights obligations.

NHRIs should monitor and record general comments that relate to indigenous peoples’ human rights.

In the Social Justice Report 2005, 295 the Aboriginal and Torres Strait Islander Social Justice Commissioner of the Australian Human Rights Commission called on the Australian Government to commit to achieving health and life expectation equality between indigenous and non-indigenous Australians within a generation. In adopting a human rights-based approach to this call for health equality, the Social Justice Commissioner applied the right to the highest attainable standard of health, as articulated in general comment No. 14 of the Committee on Economic, Social and Cultural Rights, to the health crisis facing indigenous Australians. The report sparked positive action by the Australian Government, including the signing of a Statement of Intent to achieve health equality by 2030.296