“Friends of the court” making the most of Amicus Curiae with UN Treaty Bodies

The practice of submitting Third Party Interventions (TPIs) – also known as Amicus Curiae briefs – is well established in Commonwealth jurisdictions, and it has become common practice within regional mechanisms such as the Inter-American and European Courts of Human Rights, and the African Court on Human and Peoples’ rights. Similarly, most of the eight UN Treaty Bodies (UNTBs) mandated to review individual communications (ICs) have also received TPIs. Although the amount of TPIs submitted to the UNTBs is nowhere commensurate to those submitted to regional courts, it is growing. A new resource published by the International Service for Human Rights (ISHR) with support from international law firm DLA Piper provides guidance to potential authors.

A new tool for litigators

TPIs in the context of Treaty Bodies are a niche practice. Research carried out by ISHR found that, as of 2021, only 26 of all the cases decided by UNTBs had received submissions from third parties. Not all briefs are available online nor referred to in the Committees’ decisions, meaning that the real figure may be slightly higher. Interestingly, a number of TPIs have been authored by current or former experts of the UNTBs (including Rapporteurs on ICs), as well as by other UN experts, especially Special Procedure mandate holders. This is a testament to their relevance and effectiveness, as a way to provide information that the UNTB may not be able to obtain otherwise. Yet it also demonstrates the inaccessibility of the process, where only those who know how to navigate the complex UN human-rights system find it feasible to make an intervention. TPIs are not only important because of their informative value, but also because they make international justice more accessible and democratic. Decisions by UNTBs can, and usually do, have an impact that goes beyond the specific case, including on broader issues. As such, it is crucial for the process to be opened up to a broader audience.

Expanding jurisprudence for rights holders

Examples of TPIs influencing decisions of UNTBs can be found in various contexts. The recent CEDAW decision concerning the criminalisation of same-sex relations in Sri Lanka was positively influenced by a TPI which argued that on top of the violations alleged in the complaint to the Committee, an additional two provisions of the Convention were violated, a determination which the Committee chose to uphold in their decision.

In Canada, Nell Toussaint was denied access to life-saving healthcare due to her status as an irregular migrant. The HRCttee considered that the right to life also includes the right to life-saving healthcare, and that her rights to life and non-discrimination were violated. This pioneering and complex finding was informed by several TPIs which provided legal information that was relevant to substantiate a complex case.

First hearing for authors of amicus in Treaty Bodies

The case of Sacchi et al v. Argentina, Brazil, France, Germany & Turkey at the Child Rights Committee (CRC) drew much international attention, primarily as climate activist Greta Thunberg was one of the petitioners. They argued that by “recklessly causing and perpetuating life-threatening climate change, the five states had failed to take the necessary preventive and precautionary measures to respect, protect, and fulfil the petitioners right to life, right to the highest attainable standard of health  and right to enjoy culture”.

The Committee’s decision, which was published in October 2021, has been the subject of rarely seen discussions about UNTB decisions. The CRC itself hailed the decision as “historic” as it “found that a State party can be held responsible for the negative impact of its carbon emissions on the rights of children both within and outside its territory”. The decision was deemed groundbreaking for other substantial aspects relating to the right to a clean environment, and rights to life and health. On the opposite end of the spectrum, the petitioners publicly aired their disappointment that the Communication had been rejected due to a lack of exhaustion of domestic remedies.

Yet one important procedural aspect of the case hasn’t drawn much attention: a TPI, prepared by the current and former UN Special Rapporteurs on the environment, was submitted to the Committee; and, for the very first time in the history of all UNTBs, the third parties were able to make oral interventions. The practice of holding hearings when deciding ICs is rare for UNTBs; only three UNTBs have ever done so: CRC, HRCttee and CAT. Out of these three, only the CRC explicitly allows for the possibility of allowing oral interventions from third parties as well.

By providing the opportunity for third parties to participate in hearings, the Child Rights Committee opened up promising avenues of engagement.  This practice will allow third-parties to expand on their written arguments, elicit any potential lack of clarity and spontaneously address any questions UNTB members may have. It is hoped that other UNTBs will follow suit and enable third parties to participate in hearings.

Anti-torture Committee lagging behind

One cannot draw a comprehensive overview of TPIs within UN Treaty Bodies without underlying the peculiarly unique situation of the Committee against Torture (CAT). CAT is the second Committee with most cases pending review after the HRCttee. The vast majority of cases submitted to both Committees relate to asylum requests, and the CAT also has cases of victims of torture and other ill treatment pending review. The relevance of TPIs in the context of as serious human rights violations as torture and other ill treatment cannot be underestimated. And yet CAT is the only Committee considering individual complaints without a dedicated procedure on TPIs. The only case considered by CAT appearing to have received an Amicus Curiae is a decision of 2005 on Serbia and Montenegro. Thus, no TPIs were considered by CAT for more than 15 years. It is unclear for potential authors whether TPIs can be submitted, a situation which has led to a contrasting difference between the sheer amount of cases pending review, and the absence of TPIs submitted to this Committee.  This absence is all the more surprising as members of the Committee and Rapporteurs on Individual Communications have expressed interest in considering TPIs, and yet interested authors will find it hard to get a clear answer as to whether TPIs can be presented or not. It is hoped that this glaring gap will be addressed by the Committee.

Looking forward: enhancing transparency & accessibility

The most obvious limitation to the submission of TPIs to UNTBs is lack transparency and publicly accessible information about cases pending review. Quite clearly, if information about what cases are pending review before the Committees is not made available, it is factually impossible for third parties to intervene. This situation is also substantiated by the fact that presumably all TPIs submitted to the Committees so far have originated from authors with direct contacts to the parties, or the Committees. Yet, anyone with an interest in the substance matter under consideration should be able to submit TPIs.

Unlike regional courts, which systematically publicise registered cases, UNTBs do not. The Human Rights Committee webpage does not provide an overview of registered cases after 2019; CESCR’s and CRC’s seem to be recently updated; CEDAW’s appears to have last been updated in October 2020; while CRPD’s appears to have last been updated in January 2019. CAT, CERD and CED do not provide such lists. By contrast, the European Court of Human Rights provides useful summaries about cases pending review, such as in online factsheets, or sorted by member states.

Unless and until information about cases pending resolution before UNTBs becomes widely available and updated on an ongoing basis, TPIs will continue to remain a niche practice. Of course, any potential increase in TPIs will result in an extra burden on the OHCHR Secretariat, and financial resources and staffing made available to the ECtHR cannot be compared with the team of less than 20 lawyers handling all Individual Communications across the UNTBs. And yet, both UNTBs, litigators, and even States parties, several of which have submitted TPIs to UNTBs, are keen to make use of this important tool. Practical and resource light solutions exist for information about pending cases to be made publicly available, and the ongoing digital uplift process at OHCHR provides a relevant opportunity to tackle this. Such solutions have also been identified and discussed as part of previous initiatives, such as those hosted by the Geneva Academy and the Centre for Civil and Political Rights. It remains to be seen whether the proposed solutions will be acted upon.