It’s All Been Done: Individual Communications, the Exhaustion Rule and Expanding and Evidencing Domestic Barriers to Justice

The exhaustion rule traverses competing imperatives in international human rights law. On one hand, the individual communications procedure was established to overcome blockages in human rights accountability on the domestic plane. On the other, the individual communication procedure should not usurp the primary role of domestic actors rectifying human rights violations. Individuals must exhaust domestic remedies before accessing the UN treaty bodies individual communicated procedure but there are recognised exemptions to these admissibility rule. However, exhaustion and its exemptions is currently unable to balance the underlying tensions that motivate this rule. The UNTBs are reverting to a formalistic and mechanical application of this admissibility criteria, limited recognition of the plethora of domestic barriers to justice and conceptual confusion on how to prove the existence of these barriers. This chapter argues that an individual-centred, contextual approach can be harnessed to provide evidentiary clarity and to prevents the state from hiding from international scrutiny due to its own failures while not circumventing the role of domestic justice in remedying human right wrongs