Is there life after February 8, 2023: what opportunities do Belarusians have left for interaction with international mechanisms?
Published May 11, 2023
After the withdrawal of the Republic of Belarus from the Optional Protocol (hereinafter referred to as the Protocol) to the International Covenant on Civil and Political Rights (hereinafter referred to as the Covenant), which deprived individuals of the opportunity to defend the rights guaranteed by the Covenant in the Human Rights Committee (hereinafter referred to as the HRC, the Committee), it may seem that International mechanisms for the protection of human rights have exhausted themselves and can no longer be useful - but this is not so.

The inability to file individual complaints after February 8, 2023 is certainly bad news; However, the activities of the Committee and other international mechanisms operating on the basis of treaties concluded between states (treaty bodies) still provide opportunities for interaction, advocacy, and informing experts and the general public about human rights violations in Belarus.

More details about such opportunities can be found in the material created based on a conversation with international lawyer and Human Constanta expert Tatyana Zinyakova.

Tatyana Zinyakova

international lawyer, expert at Human Constanta
clause 2 art. 1 Covenant:
1. Each State party to the present Covenant undertakes to respect and ensure to all persons within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other beliefs, national or social origin, property status, birth or other circumstances.
Art. 1 of the Optional Protocol:
A State Party to the Covenant which becomes a party to this Protocol recognizes the competence of the Committee to receive and consider communications from persons subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant. No communication shall be accepted by the Committee if it concerns a State party to the Covenant that is not a party to this Protocol.
The Permanent Court of International Justice in 1923, when considering the case of the Wimbledon steamer, ruled: "it [the House] refuses to consider the fact of the conclusion of any treaty, according to which states undertake to implement
certain actions or refrain from them, as a surrender of sovereignty; on the contrary, the right to conclude international agreements is one of
attributes of state sovereignty."
What did the ratification of the Covenant in 1976 and its Optional Protocol in 1992 mean for Belarus?
Any ratification by a state of an international treaty (both the Covenant and the Optional Protocol to it are such treaties) entails the acceptance by the state of certain international legal obligations. By ratifying the Covenant and the Protocol, the Republic of Belarus promised other states and individuals within its jurisdiction to recognize the rights specified in the Covenant (this treaty does not contain all possible human rights, it provides a list of basic civil and political rights - the right to life, freedom of expression, freedom of assembly and so on), respect, protect and implement them.

By ratifying the Optional Protocol, Belarus recognized the competence of the HRC, as the body monitoring the fulfillment by states of their obligations under the Covenant, to receive individual complaints from individuals alleging that the state has violated their rights, to consider such complaints and issue its views. It appears that once the Protocol was ratified, Belarusians and others claiming that their rights had been violated by the state, having (unsuccessfully) sought all relevant and potentially effective remedies in Belarus, could file a complaint with the Committee.

The committee is not a court, but the procedure for considering a complaint resembles a judicial one, assessing the arguments of both parties (the victim and the state - the alleged violator), making a decision and recommending the possibility of paying compensation if a violation by the state is recognized. Tatyana calls the appeal to the Committee "an opportunity to restore justice in a quasi-judicial manner."
What about the common view of national legislation as the ultimate authority, which has ultimate authority when a human rights obligation conflicts with existing regulation? Is it possible to make an argument about state sovereignty as a defense against supranational bodies "imposing" their view of the situation?
As mentioned above, ratification of an international treaty means the state's readiness to voluntarily assume the obligations provided for in it. Belarus, among other things, is a party to the Vienna Convention on the Law of Treaties, which means it shares the validity of what is written in Article 27 of the Convention: "A party may not invoke the provisions of its internal law as an excuse for its failure to fulfill the treaty." The Vienna Convention, unlike the aforementioned Protocol, was not denounced by Belarus. Therefore, the answer from the point of view of international law is clear: referring to the provisions of domestic legislation to justify violations of international agreements is prohibited. Moreover, when a state assumes obligations (in particular, in the field of protecting human rights), it is assumed that it reasonably assesses its ability to fulfill these obligations - including improving national legislation if necessary. When accepting obligations to protect people with disabilities, the state must think about what legislative and institutional changes their conscientious implementation entails, and how to bring its regulation into line with the act being ratified. Simple ratification in the absence of any action to fulfill the undertaken obligation may subsequently result in a finding of violations - which is logical if both other states and citizens of the country party to the treaty expect behavior in accordance with the international act. In such cases, references to national legislation, which is under the full control of the state and at the same time contradicts its international obligations, are unlawful.

In general, authoritarian states tend to protect themselves from international institutions and mechanisms with which they must already interact due to previously assumed international obligations. The concept of sovereignty - important in itself - in such cases is a tool for manipulation. Obligations to protect human rights in themselves do not conflict with state sovereignty if they were taken by the state voluntarily - and not in spite of, but because of its ability to be a full-fledged subject of international relations, to have rights and bear responsibilities.
On the logic of the considerations made by the Committee
The Committee, as a mechanism that monitors the state's fulfillment of its obligations in specific cases, does not directly look for individuals "guilty" of what happened, but rather establishes dysfunction in state processes and institutions - in legislation, law enforcement practice - since the very obligation to respect, protect and realize rights human responsibility lies with the state, a violation can only be established in relation to the state itself, which has not ensured the fulfillment of its obligation - be it through the introduction of discriminatory legislation or the failure to investigate a murder.

For victims of violations and the community, the Committee, in addition to a means of restoring justice and the opportunity to be heard, provides a platform for formal recording of practices taking place in a given state through the prism of the stories of individuals - a kind of storytelling - which, at the same time, is given an expert legal assessment. This is an important evidence of the present time, allowing "not to turn tragedies into statistics", preventing individual voices of victims from getting lost in the general, difficult-to-perceive mass flow of violations.

Does Belarus' denunciation of the Optional Protocol mean a complete cessation of interaction with the Committee?

Firstly, for a long time the Committee will consider complaints filed by Belarusians before February 8. There are many of them, but registration can take months, and their consideration can take years, and one needs to be prepared for this. All this time, the Committee's interaction with the state and with the alleged victims of violations will continue.

Secondly, there remains the possibility of interaction with the Committee as a treaty body, for which the Convenant (to which Belarus, let us remind you, is still a party) also provides for other powers. In particular, States are required to regularly interact with the Committee by submitting reports on their implementation of their obligations under the Covenant. Non-state actors can provide alternative reports with their own view of the situation.

Other treaty bodies are also available for interaction, including the Committee on the Elimination of Discrimination against Women, which extends the competence to consider individual complaints to Belarus. There are also forums in the UN system that are not related to the performance of quasi-judicial functions: thematic mandates (Working Group on Arbitrary Detention), Working Group on Enforced or Involuntary Disappearances, Special Rapporteur on the question of independence judges and lawyers), country mandates (OHCHR Mandate to review the human rights situation in Belarus). Such bodies and mandates do not have the power to make decisions that bind the state, but they can make recommendations, raise awareness of the situation through public statements, and interact with the state publicly and non-publicly. The format of the activities of the Working Group on Arbitrary Detention, for example, also makes it possible to convey information about individual victims of violations and the specific circumstances of their detention. The importance of OHCHR's activities can be illustrated by the report on the situation in Belarus published in March 2023, which officially notes that individual violations of the state may amount to crimes against humanity. The UN Human Rights Council conducts a Universal Periodic Review, which regularly assesses the state's compliance with human rights obligations and makes recommendations for improving the situation (a report on the situation in Belarus was reviewed in 2020).

The Moscow Mechanism operates within the OSCE, including in relation to Belarus; in 2020, a report was prepared on the human rights situation in the country after the presidential elections.

You can interact with all these mechanisms by responding to requests for thematic information (here you can track the deadlines for requests from various mechanisms in the field of human rights protection), participating in the formation of alternative government reports on the state of affairs.

In addition, there remains the possibility of public expression and interaction with other actors - for example, in the technological sphere, business and human rights: advocacy is possible in connection with the dissemination on platforms such as YouTube and Telegram, " repentance videos" that violate the rights of detained persons, informing businesses about the tools of digital authoritarianism used by the Belarusian authorities.
Does Belarus' denunciation of the Optional Protocol mean a complete cessation of interaction with the Committee?
Clarifying the human rights situation through the prism of individual cases is more than appropriate; Moreover, contacting, for example, the Special Rapporteur on Human Rights Defenders with a description of individual stories, information about the types of persecution that a particular person has faced, will be more effective. It is advisable to raise the topic of "extremism" both at the level of general statements about legislation, which is becoming more and more ramified and extensive (even acts that were previously "neutral" are used as repressive instruments, which forms a kind of repressive ecosystem), and at the level of individual consequences of using a cumbersome system.

In general, it is important for all interested actors to remember the following: firstly, even in the absence of the possibility of filing individual complaints with the Human Rights Committee, it is possible to continue to engage with the Committee at a minimum through the consideration of complaints already submitted - in particular, advocating for the use of a more soft approach in assessing admissibility for complaints, in the preparation of which it was objectively difficult to provide the documentary evidence required by the Committee of the exhaustion of all domestic remedies due to the peculiarities of Belarusian procedural legislation and the threat of prosecution of persons who may request such documents.

Secondly, many other platforms and mechanisms remain available, in interaction with which one can be creative and look for common ground between issues of interest to international actors and Belarusian practices.
Is it appropriate to rely on specific cases when interacting with mechanisms other than filing individual complaints?
Прояснение ситуации с правами человека через призму индивидуальных кейсов более чем уместно; более того, обращение, к примеру, к Специальной докладчице по правозащитникам с описанием индивидуальных историй, информации о видах преследования, с которыми столкнулся конкретный человек, будет более эффективным. Тему «экстремизма» целесообразно поднимать как на уровне общих утверждений о законодательстве, которое становится все более разветвленным и обширным (в качестве репрессивных инструментов задействуются даже акты, которые ранее были «нейтральными», что формирует своего рода репрессивную экосистему), так и на уровне индивидуальных последствий применения громоздкой системы.

В целом, всем заинтересованным акторам важно помнить о следующем: во-первых, даже в отсутствие возможности подавать индивидуальные жалобы в Комитет по правам человека, можно продолжать взаимодействие с Комитетом как минимум в рамках рассмотрения уже поданных жалоб — в частности, адвокации в пользу применения более мягкого подхода в оценке приемлемости для жалоб, при составлении которых объективно затруднительно было привести требуемые Комитетом документальные подтверждения исчерпания всех внутренних средств правовой защиты в силу особенностей беларусского процессуального законодательства и угрозы преследования лиц, которые могут запрашивать подобные документы.

Во-вторых, остаются доступными многие другие площадки и механизмы, во взаимодействии с которыми можно проявлять креативность и искать точки соприкосновения между интересующими международных акторов вопросами и беларусскими практиками.

00:00 – Introduction

1:10 — The significance of the ratification of the International Covenant on Civil and Political Rights and its protocol for Belarus

5:21 — "If a human right is not in the law, then it does not exist in principle": the relationship between national legislation and the provisions of the Covenant

9:55 — Illegality of invoking state sovereignty to justify derogation from the provisions of the Covenant

12:58 — The logic of consideration of complaints by the Human Rights Committee

13:48 — Denunciation of the Optional Protocol to the Covenant and the possibility of further interaction with the Committee

16:49 — Other international mechanisms for the protection of human rights and opportunities for communication with them

19:02 — How the work of the Committee prevents the "transformation of tragedy into statistics"

20:11 — Continuing the conversation about other mechanisms (OSCE Moscow Mechanism, Universal Periodic Review, and so on)

21:16 — Advocacy for the "Belarusian agenda" from the technological side: "repentance videos" on Youtube, shutdowns and facial recognition

24:30 — Opportunity for advocacy through international mechanisms by responding to requests for information, preparing alternative reports

27:53 — The appropriateness of bringing individual cases of persecution when interacting with international mechanisms beyond the filing of individual complaints

34:57 — Opportunities for advocacy here and now, in particular before the Human Rights Committee
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