Over time, United Nations human rights treaty bodies (UNTBs) have developed an admissibility requirement that individuals’ allegations be ‘sufficiently substantiated’ or ‘not manifestly unfounded’. Explanations of these terms have varied, but States, treaty body members and scholars have equated them with a prima facie threshold. Among international tribunals, prima facie is commonly understood to require the complainant to make a plausible claim. However, review of UNTB decisions indicates that application of this requirement clashes with the accepted meaning of prima facie by: (1) often requiring the complainant to present convincing allegations; (2) taking into account – or giving greater weight to – the state’s arguments and evidence at the admissibility stage; and 3) sometimes requiring the complainant to pre-emptively overcome the state’s possible defences. This chapter seeks to identify relevant trends in order to both better understand current UNTB practice and illuminate paths to greater consistency and clarity in admissibility determinations.

Before accessing the UN treaty bodies’ individual communications procedure, a complainant must have exhausted domestic remedies. This admissibility rule exists for good reasons, but it has limits. In particular, exemptions must be recognised in respect to domestic remedies which lack effectiveness, including accessibility. Regrettably, UNTBs are currently reverting to a formalistic and mechanical application of this admissibility rule. What justice requires, however, is the opposite: an expansive consideration of the plethora of barriers that prevent access to domestic justice, as well as a reflection about how each barrier can realistically be evidenced by a complainant. This can be achieved, this chapter argues, through an individual-centred, contextual approach, which achieves the aim of preventing the state from escaping international scrutiny, while highlighting the crucial role domestic justice should play in remedying human rights wrongs.

Over decades of reviewing individual communications, the Human Rights Committee (HRC) has developed greater consistency when shifting the evidentiary burden between the author and the state in its decisions on individual communications. The grounds on which this shift is made, including the nature of the allegations, the evidence used to corroborate the allegations, and the extent to which the state engages with the process, seem to impact the articulation of the shifted burden in certain cases. To effect this burden shift, the chapter explains that the HRC appears to follow three steps when assessing claims of a breach of the prohibition against torture: (1) the allegations must be corroborated by some level of evidence; (2) the HRC applies a rebuttable presumption that the author’s alleged facts are true; unless (3) the state offers evidence in direct response to the specific allegations of torture.

Human rights violations often form part of a pattern or practice of violations, rather than being purely isolated incidents. This context is not consistently taken into account by UNTBs during individual case consideration, however. This chapter explores several ways in which awareness of human rights violations’ embeddedness in wider contexts of violations should inform UNTB practice. In particular, the chapter considers the impact, or potential impact, of patterns and practices of violations on the manner in which UNTBs receive information, and the sorts of sources they recognize in their decisions; on UNTBs approaches to the exhaustion of domestic remedies and the burden of proof; on case structuring; and on findings, recommendations and follow-up procedures. The chapter ends by observing that UNTBs are not only receivers but also key disseminators of information, and suggests ways in which their findings as to the patterns and practices of violations may be more effectively disseminated.

Pushbacks are designed to prevent people on the move from accessing procedural and/or substantive legal safeguards. States thus tend to deny practising them and actively erase evidence of their occurrence. The resulting acute evidentiary challenges in any subsequent human rights litigation require adjustments to be made to the evidentiary framework. This chapter offers a four-branch matrix of what can logically happen to facts disputed in litigation. It then proceeds to critically examine how evidentiary issues have been handled in UNTB pushback case law, concluding the right findings have been made, but on a generally weak reasoning. The chapter finally stresses that the burden of proof should be shifted from complainant to state when two conditions are met: a context-proven to a high standard, such that the state can be presumed to have violated human rights; the complaint is linked to this context – with this proven prima facie. If the linkage is evidenced to a higher standard, the factual allegations must be recognised as established on the strength of the evidence –without any shift being alluded to, so as to avoid an upward slippage in the purposefully low standard of proof applied.

This chapter addresses evidence-related recommendations for the consideration of the UN treaty bodies. Written by three practitioners from the civil society sector, with direct experience of the individual communication procedure before the UNTBs, it also benefited from input from all the contributors to the volume, which it concludes. Part I offers normative reflections. It deals with legal questions, including: What should the applicable standard be when determining human rights claims? How should this standard vary according to the type of claim and the stage of the proceedings? In what circumstances and under which conditions should the burden of proof be shifted from the complainant to the respondent state? Part II deals with organisational, and thus more mundane issues, but it highlights how proper identification and communication of the applicable evidentiary concepts and norms are essential to a transparent, accessible and fair system, therefore necessitating proper resourcing.

This chapter examines what is considered a fact in individual communications processed by the Human Rights Committee (HRC), recognized as the UN’s most authoritative human rights monitoring body. Despite its significance, little is known about the HRC’s handling of individual complaints against states that have signed the optional protocol. Through the case studies of Sanila-Aikio v. Finland (2018) and Näkkäläjärvi et al. v. Finland (2018), which address the inclusion of new voters on the Sámi Parliament’s electoral roll, the chapter scrutinizes the Committee’s evidentiary practices. Notably, the Finnish Supreme Administrative Court added ninety-three persons to the Sámi Parliament’s electoral roll, while an unreferenced study suggested over half a million could be eligible. The Committee included this study without verifying its reliability. The chapter explores how evidence is translated and distanced from Committee members, questioning how material veracity is determined. It concludes by reflecting on how the HRC’s evidentiary regime shapes and supports certain narratives while marginalizing others.

The United Nations Operation in the Congo’s (ONUC) mandate was progressively expanded in the 1960s to include elements of international administration. In this case, like many others, a strict reading of the mandate fails to give a sense of the effective authority displayed by UN officials.The focus of this chapter will be on two specific aspects of the UN presence in the Congo in the early 1960s. First, I will focus on the role played by the UN Secretary-General in the Congo and the UN mission in general during a specific moment, generally referred to as ‘the Constitutional Crisis’. The collapse of the Congolese government enabled the UN to display assertiveness in the country, taking opportunity of this moment of exception. Second, I will analyse the Civilian Operations Programme, an unprecedented effort through which UN technicians controlled segments of the public administration of the country, which is truly interesting from the point of view of authority devoted to the UN. I argue here that the UN displayed sovereignty practices in the Congo, notably through the enterprising Hammarskjöld, who managed to position the UN in position of authority in the country, autonomising itself to a certain degree both from member states and from local Congolese elite.

The mandate of the United Nations Stabilization Mission in Haiti (MINUSTAH) doesn’t seem to hint at an international administration in Haiti, yet the setting up of the peace operation opened up a period where it is commonly understood that ‘the international community was no longer working behind the scenes in Haiti to impose a government but rather worked overtly to impose its will’. This chapter will highlight the complex sovereignty arrangement at play in Haiti, focusing on political authority claims by international actors with the repercussions this has for accountability claims from local actors. If public transcripts in Haiti generally focus on the legal trappings of sovereignty of Haiti, with theatrics such as pictures of the Haitian president with counterparts shaking hands in front of their flags in a seemingly egalitarian way, the unequal nature of power relations in Haiti is hardly difficult to detect. Through a combination of the analysis of the leaked Hillary Clinton emails as well as interviews with prominent actors in Haitian politics, I trace situations of exception in Haiti, discussing what this reveals for practices of sovereignty in Haiti. I will be focusing the analysis on the 2010-2011 elections and its aftermaths, especially the attempt to remove René Préval from the presidency following the first round of the presidential elections.

This chapter looks at some of the experiments of international governance by the United Nations typically listed as cases of international administrations (West Irian, Namibia, Cambodia and Eastern Slavonia). These United Nations peace missions have been considered as international administrations by numerous scholars, in the same category with Kosovo and Timor-Leste and sometimes on par with these two experiments in terms of effective authority deployed by international officials. I will be arguing that contra this opinion generally based on the reading of the mandates, international officials have displayed only limited political authority over these territories. Through archival work conducted in the United Nations Archives, revealing in specific instances the hidden transcripts of the time, I will be analysing each of these cases in turn, and adding a few other cases as well including Cyprus, El Salvador, Mozambique, Western Sahara and Somalia.