PROCEDURES

THE INQUIRY PROCEDURE OF THE UN TREATY BODIES

The inquiry procedure is the third and last accountability mechanism present in the treaty body system. Some scholars have argued that it is the most adequate mechanism for addressing violations of an extraterritorial nature. Article 11 of the OP-ICESCR stipulates:

The OP-CRC in its Article 13, as well as the OP-CRPD in its Article 6, contains identical provisions to those of Article 11 OP-ICESCR. As the above provision indicates, the accountability procedure provides for an interactive and collaborative process between the accountholder (the relevant treaty body) and power wielder (the State under inquiry).

The inquiry procedure contains several distinctive features which are particularly relevant when addressing extraterritorial violations. First of all, the provisions of the various inquiry procedures do not include any reference to jurisdiction. Although the inclusion of a reference should not be problematic when interpreted adequately (see infra, Part III), its absence might facilitate the submission of a complaint involving extraterritorial violations in the sense that it avoids any discussion on the concept of jurisdiction. Secondly, the inquiry procedure is only concerned with grave or systematic violations of ESC rights. This is a rather high threshold and thus excludes a lot of potential cases, including extraterritorial ones, as they will not reach this threshold. What the exact criteria are for the threshold is still uncertain. Neither the CESCR nor CRC have provided any guidance yet in this respect. Arguably, structural ESC rights violations, which we discussed above, should definitely fall within the category of systematic violations. In sum, the threshold restricts the substantive scope of the procedure but certainly does not exclude any violations that might arise from the extraterritorial conduct of States, as such violations are often systematic.

Considering the existence of an individual communications and an inter-State complaints procedure in the various protocols, the procedure should be regarded as complementary rather than exclusive. Through the procedure the Committees can investigate violations that cannot be addressed by the individual complaints procedure, considering its individual scope.