International law, Sixth edition
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International Law MALCOLM N. SHAW
party to the Protocol. 293 The individual must have exhausted all available domestic remedies (unless unreasonably prolonged) and the same matter must not be in the process of examination under another international procedure. 294 The procedure under the Optional Protocol is divided into several stages. The gathering of basic information is done by the Secretary- General and laid before the Working Group on Communications of the Committee, which recommends whether, for example, further informa- tion is required from the applicant or the relevant state party and whether the communication should be declared inadmissible. The procedure be- fore the Committee itself is divided into an admissibility and a merits stage. Interim decisions may be made by the Committee and ultimately a ‘final view’ communicated to the parties. 295 291 CCPR/C/21/Rev.1/Add.10, 2000. General Comment 29 adopted in 2001 dealt with the question of non-derogable provisions, see CCPR/C/21/Rev.1/Add.11. Note also General Comment 32 concerning the right to equality before courts and tribunals and to a fair trial, CCPR/C/GC/32, 2007. 292 The inter-state procedure has not been used to date. 293 Signed in 1966 and in force as from 23 March 1976. See e.g. H. Steiner, ‘Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee?’ in Alston and Crawford, Future, p. 15; P. R. Ghandi, The Human Rights Committee and the Right of Individual Communication: Law and Practice, Aldershot, 1998; A. de Zayas, H. M¨oller and T. Opsahl, ‘Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee’, 28 German YIL, 1985, p. 9, and Selected Decisions of the Human Rights Committee under the Optional Protocol, New York, vol. I, 1985 and vol. II, 1990. Two states (Jamaica and Trinidad and Tobago) have denounced the Protocol. 294 Article 5, Optional Protocol. 295 See Nowak, ‘Effectiveness’, 1980, pp. 153 ff., and 1981 Report of Human Rights Committee, A/36/40, pp. 85–91. 320 i n t e r nat i o na l l aw An increasing workload, however, began to cause difficulties as the number of parties to the Optional Protocol increased. By mid-2006, 1,490 communications had been registered. Of these, 547 had been the subject of a final view (of which 429 concluded that a violation had occurred), 449 were declared inadmissible and 218 were discontinued or withdrawn, leaving 276 yet to be concluded. 296 In order to deal with the growth in ap- plications, the Committee decided at its thirty-fifth session to appoint a Special Rapporteur to process new communications as they were received (i.e. between sessions of the Committee), and this included requesting the state or individual concerned to provide additional written informa- tion or observations relevant to the question of the admissibility of the communication. 297 The Committee has also authorised its five-member Working Group on Communications to adopt a decision declaring a com- munication admissible, providing there is unanimity. 298 The Committee may also adopt interim measures of protection under Rule 92 of its Rules of Procedure 2005. This has been used primarily in connection with cases submitted by or on behalf of persons sentenced to death and awaiting execution. 299 Such a request was made, for example, to Trinidad and To- bago in the Ashby case pending examination of the communication, but to no avail. After the individual was executed, the Committee adopted a decision expressing its indignation at the failure of the state party to comply with the request for interim measures and deciding to continue consideration of the case. 300 Where the state concerned has disregarded the Committee’s decisions under Rule 92, the Committee has found that the state party has violated its obligations under the Optional Protocol. 301 The Committee, however, is not a court with the power of binding de- cision on the merits of cases. Indeed, in instances of non-compliance with its final views, the Optional Protocol does not provide for an enforcement mechanism, nor indeed for sanctions, although follow-up techniques are being developed in order to address such problems. 302 296 Report of the Committee for 2005–6, A/61/40, para. 89 (2006). 297 A/44/40, pp. 139–40. See also Rule 91 of the amended Rules of Procedure, ibid., p. 180. 298 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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