Ludwig Boltzmann Institut für Menschenrechte Ludwig Boltzmann Institute of Human Rights

3. Human Rights Treaties and Monitoring Mechanisms

Julia Kozma and Moritz BirkUniversity of ViennaLudwig Boltzmann Institute of Human Rights, Vienna

• The Universal Declaration of Human Rights (UDHR)• The core human rights treaties and their status of

ratification• Treaty bodies and monitoring mechanisms• Overview of the individual human rights treaties –

content and monitoring• Functioning of the individual complaint procedure – by

the example of the ICCPR• International treaty monitoring system – problems and

possible solutions

Overview

GA Res. 217 A (III), 10 December 1948

· Most fundamental international human rights document presupposing human rights as the “foundation of freedom, justice and peace in the world” (Preamble)

· Not binding (“a common standard of achievement”), but parts constitute customary international law

· Authoritative interpretation of the term ‘human rights’ in the UN Charter

· Incorporated in many national constitutions and referred to in many international human rights treaties

· Includes civil, political, economic, social and cultural rights and a reference to ‘third generation rights’ (art. 28)

Universal Declaration of Human Rights (UDHR)

• International Covenant on Civil and Political Rights (CCPR, 1976)• International Covenant on Economic, Social and Cultural Rights (CESCR, 1976)• International on the Elimination of All Forms of Racial Discrimination (CERD, 1969)• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1981)• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1987)• Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (MWC, 2003)• Convention on the Rights of the Child (CRC, 1990)• Convention on the Rights of Persons with Disabilities (CRPD, 2008)• Convention for the Protection of All Persons from Enforced Disappearance (CED, not yet in force)

The Core Human Rights Treaties

9297

55

128

104

63

0

133 134 129

146151

185

6

166160

147

173

186193

43

95

19

0

20

40

60

80

100

120

140

160

180

200

CCPR CESCR CAT CERD CEDAW CRC MWC CRPD CED

Ratifications of Human Rights Treaties 1990 - 2010

End of 1990

End of 1995

December 2010

• Each treaty is monitored by a Committee composed of independent experts (between 10-25), elected by the State parties (exception ComESCR – elected by ECOSOC)

• The CCPR and CRC Committees meet three times a year, the CMW Committee once and the other treaty bodies twice

• Serviced by the OHCHR in Geneva• Issue non-binding General Comments/Recommendations• Monitoring mechanisms:

- State Reporting procedure – obligatory- Individual Complaints procedure (all but CRC) - optional- Inquiry Procedure (CAT, CEDAW) – opt out possibility- Fact-finding visits (SPT, CED Committee)- National monitoring (OPCAT, CRPD)

Treaty Bodies

• Obligatory in all treaties - initial, periodic and supplementary (e.g. emergency) reports

• Preparation of the report at the domestic level (NGO input?)

• Public examination by the treaty monitoring body (informal role of NGOs)

• Concluding observations (country-specific) and general comments (published in the annual report)

• Follow-up (important role of NGOs)

State Reporting Procedure

• Optional (Protocols, Declarations)

• Quasi-judicial bodies: proactive, decisions of high quality but not legally binding (“views”/”observations”)

• No enforcement or political follow-up

• Accessibility: Recognition by State of origin, only written submissions; admissibility

• Relatively few cases

Individual Complaints Procedure

Acceptance of Individual Complaints

3

64

45

99

2

58

7

113

0

20

40

60

80

100

120

OP-CCPR

OP-CESCR

CAT,Art. 22

CERD CEDAW MWC CRPD CED

December 2010

(Article 20 CAT, OP 1 CEDAW)

• Opting-out possibility at the time of signature or ratification (article 28 CAT, article 10 OP 1 CEDAW, article 6 OP CRPD)

• Procedure initiated by the Committees on the basis of well-founded indications of the systematic violations (information frequently provided by NGOs)

• Observations of the government concerned• Confidential inquiry• On-site visit to the country (with consent of the government concerned)• Confidential report of the Committee with suggestions and observations• Possible publication of summary account• Eight inquiry procedures so far, half of the reports remain confidential

Inquiry Procedure

- GA Res. 2200A (XXI) of 16 December 1966- Entry into force: 23 March 1976- 166 states parties (not ratified by China)

Contents

· Contains essential civil and political rights including the right of self-determination (article 1), right to equality and non-discrimination (article 26), rights of persons belonging to minorities (article 27) and prohibition of propaganda for war and incitement to discrimination, hostility or violence (article 20).· Second Optional Protocol, aiming at the abolition of the death penalty (GA Res. 44/128 of 15 December 1989, entry into force on 11 July 1991; 72 states parties)

International Covenant on Civil and Political Rights (CCPR)

Monitoring

· Human Rights Committee: 18 experts· State reporting procedure – mandatory (article 40): country-specific recommendations· General comments: essential interpretative views, 33 to date· Inter-state communication procedure (article 41); no cases to date· Individual communication procedure under the 1st Optional Protocol to the CCPR (1966/76, 113 states parties): similar to the procedure before the European Court of Human Rights, total cases 1964, 402 cases pending, 557 inadmissible and 274 discontinued cases; 731 views, 589 violations found (as of 08/2010)

International Covenant on Civil and Political Rights (CCPR)

- GA Res. 2200A (XXI) of 16 December 1966- Entry into force: 3 January 1976- 160 states parties not ratified by the US)

Contents:· Right of peoples to self-determination – article 1· Basic state obligation differs from CCPR – article 2:

- To take steps, individually and through international assistance and co-operation- To the maximum of its available resources- With a view to achieving progressively the full realization of the rights recognized in the Covenant

- By all appropriate means· Most economic, social and cultural rights including:

- Right to work – article 6- Right to an adequate standard of living – article 11- Right to education – article 13

International Covenant on Economic, Social and Cultural Rights (CESCR)

Monitoring

· Committee on Economic, Social and Cultural Rights (not provided in the treaty, established by ECOSOC, Res.1985/17): 18 experts

· State reporting procedure – mandatory (articles 16, 17): country-specific recommendations

· General comments: essential interpretative views, 21 to date (08/2010)

· Individual communication procedure, Optional Protocol, adopted 10 December 2008, in force with tenth ratification (presently three accessions)

International Covenant on Economic, Social and Cultural Rights (CESCR)

- GA Res. 2106A (XX) of 21 December 1965- Entry into force: 4 January 1969- 173 states parties

Contents (I)

· Definition – article 1: racial discrimination shall mean: - Any distinction, exclusion, restriction or preference- Based on race, colour, descent or national or ethnic origin- Which has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise…of human rights and fundamental freedoms· Not applicable between citizens and non-citizens – article 1(2)· Affirmative action is permissible (special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals) – article 1(4)

International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

Contents (II)· States undertake:

- To punish those responsible for racial discrimination - article 4- To guarantee the right of everyone, without distinction as to race,

colour, etc., to equality before the law, notably in the enjoyment of specified rights – article 5

- To assure to everyone within their jurisdiction effective protection and remedies against any acts of racial discrimination – article 6

Monitoring· Committee on the Elimination of Racial Discrimination: 18 experts· State reporting procedure – mandatory (article 9): country-specific recommendations· General Recommendations: essential interpretative views, 33 to date· Inter-state communication procedure: mandatory (article 11); not effective, no cases to date· Individual communication procedure: optional (following state declaration, article 14). In place since 1982, 54 declarations, 45 cases in total, 4 cases pending, 24 views, 10 violations (07/2010). States may establish a special national body to receive and examine complaints.

International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

- GA Res. 34/180 of 18 December 1979- Entry into force: 3 September 1981- 186 States parties

Contents

· Basic principle: elimination and prohibition of all discrimination against women – article 2

· Affirmative action is permissible – article 4

· Provisions on women’s political rights (articles 7 – 9); social and economic rights (articles 10 – 14); equality before the law and family rights (articles 15 – 16); special provisions on trafficking in women (article 6) and rights of rural women (article 14).

Convention on the Elimination All Forms of Discrimination against Women (CEDAW)

Monitoring

· Committee on the Elimination of Discrimination Against Women: 23 experts· State reporting procedure – mandatory (article 18): country-specific recommendations· General Recommendations: essential interpretative views, 26 to date· No Inter-state communication procedure· Individual communication procedure under the 1st OP to CEDAW: GA Res. 54/4 of 6 October 1999, entry into force on 22 February 2000, 99 states parties, 14 cases decided to date (last case in 2008)· Inquiry procedure under the same 1st OP to CEDAW in cases where the Committee has received reliable information of gross and systematic violations (OP article 8); possible to opt out at ratification (OP article 10); one case completed (Mexico)

Convention on the Elimination All Forms of Discrimination against Women (CEDAW)

- GA Res. 39/46 of 10 December 1984- Entry into force: 26 June 1987- 147 states parties

Contents· Definition of torture – article 1· State obligations to prevent torture (articles 2, 10, 11, 15, 16)· State obligations to provide remedies and reparation (articles 12, 13, 14)· Non-refoulement principle (article 3)· Punishment of perpetrators:

- All acts of torture must be offences under domestic criminal law (article 4)- Universal jurisdiction (articles 5 to 8): principle ‘aut dedere aut judicare’

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

Monitoring

· Committee against Torture: 25 experts· State reporting procedure – mandatory (article 19)· General Comments: essential interpretative views, 2 to date (Dec. 2007)· Inter-state communications: optional (article 21); no cases to date· Individual communications: optional (article 22, 64 declarations); total cases 421, 97 cases pending, 164 views, 49 violations (05/2010)· Inquiry procedure: mandatory (article 20) with opting-out possibility (article 28); seven total cases , three reports published· Optional Protocol 2002 (GA Res. 57/199 of 18 December 2002, entry into force 22 June 2006): system of preventive visits to places of detention (International Subcommittee and National Preventive Mechanisms), 57 State parties

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

- GA Res. 44/25 of 20 November 1989- Entry into force: 2 September 1990- 193 states parties (no ratifications yet by Somalia and the USA)

Contents· Includes children’s civil, political, economic, social and cultural rights in the areas of provision (e.g. adequate standard of living), protection (e.g. from violence or exploitation) and participation (e.g. in the family, at school, in society)· Four basic principles:

- Best interest of the child shall be a primary consideration in all actions concerning children (article 3)- Prohibition of discrimination (article 2)- Right to life and development of the child to the maximum extent (article 6)- Right to participation (article 12)

Convention on the Rights of the Child (CRC)

· Optional Protocol on the involvement of children in armed conflicts: GA Res. 54/263 of 25 May 2000; entry into force 12 February 2002; 139 States parties· Optional Protocol on the sale of children, child prostitution and child

pornography: GA Res. 54/263 of 25 May 2000; entry into force 18 January 2002; 141 states parties

Monitoring· Committee on the Rights of the Child: 18 experts · State reporting procedure – mandatory (article 44)· General Comments: essential interpretative views, 12 to date· No Inter-state communication procedure· No Individual communication procedure· Days of General Discussion: annual Experts Forum· Active involvement of NGOs and UNICEF

Convention on the Rights of the Child (CRC)

- GA Res. 45/158 of 18 December 1990- Entry into force: 1 July 2003- 43 States parties (few industrialized States where migrant workers live)

ContentsProvides for a comprehensive list of civil, political, economic, social and cultural rights of migrant workers and their families

Monitoring· Committee on Migrant Workers: 10 experts· State reporting procedure mandatory (art. 73)· Individual and inter-state procedure optional (art. 76, 77) procedure only becomes operational when 10 States have submitted declarations (to date only Guatemala and Mexico)

Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (MWC)

- GA Res. 61/106 of 13 December 2006- Entry into force: 3 May 2008- 95 States parties

ContentsFar-reaching positive obligations for States to ensure non-discrimination, the full and effective participation and inclusion, the respect for difference and acceptance of persons with disabilities as part of human diversity and humanity, the equality of opportunity and accessibility

Monitoring· Committee on Enforced Disappearances: 12 experts· State reporting procedure - mandatory (art. 35)· Individual or group complaints procedure - Optional Protocol (58

ratifications)· Inquiry procedure (art. 6 OP), national mechanism (art. 33)

International Convention on the Rights of Persons with Disabilities (CRPD)

- GA Res. 61/177 of 20 December 2006- not yet in force: requires 20 ratifications, to date 19

ContentsProvision on the prohibition and prevention of enforced dissapearances, including the explicit provision of secret detention and several rights for victims (any person suffering harm as a direct result of the disappearance) of enforced disappearances (e.g. information, reparation)

Monitoring· Committee on Enforced Disappearances : 10 experts· State reporting procedure - mandatory (art. 29)· Urgent actions to Governments (art. 30)· Individual and inter-state procedure - optional (art. 31, 32)· Fact-finding visit with State’s consent (art. 33)

International Convention for the Protection of All Persons from Enforced Disappearance (CED)

(indicating years of adoption and entry into force) • Slavery Convention (1926/27)• Protocol amending the 1926 Slavery Convention (1953/53)• Supplementary Convention on the Abolition of Slavery, the Slave Trade, and

Institutions and Practices Similar to Slavery (1956/57)• Convention on the Prevention and Punishment of the Crime of Genocide (1948/51)• Four Geneva Conventions on Humanitarian Law (1949/50)• Two Protocols Additional to the Geneva Conventions (1977/78)• Convention Relating to the Status of Refugees (1951/54)• Protocol Relating to the Status of Refugees (1967/67)• Convention on the Political Rights of Women (1952/54)• Convention Relating to the Status of Stateless Persons (1954/60)• Convention on the Reduction of Statelessness (1961/75)• Convention on Consent to Marriage, Minimum Age for Marriage and Registration of

Marriages (1962/64)• International Convention on the Suppression and Punishment of the Crime of

Apartheid (1973/76)• International Convention on the Protection of the Rights of All Migrant Workers and

Members of Their Families (1990/2003)

Other Major UN Human Rights Treaties

Individual Complaints Before UN Treaty Monitoring Bodies

(1976 – 2010)

Treaty number of cases registered number of cases decided on the merits

CCPR 1.964 731

CAT 421 164

CERD 45 24

CEDAW 14 5

Individual Complaints Procedure1st OP to the CCPR

Communication from individual who claims to be the victim of a violation of CCPR (‘Author’)

Human Rights Committee

Admissibility Procedure

Requirements:- Competence of Committee recognized by states parties to the

Protocol (article 1 OP)- Exhaustion of domestic remedies (articles 2, 5(2)(b) OP)- No anonymous communications, no abuse (article 3 OP)- Compatibility with provisions of the Covenant (ratione temporis,

personae, loci, materiae) (article 3 OP)- No parallel examination of the matter under another international procedure (article 5(2)(a) OP)- Substantiation of allegations (prima facie case) (article 2 OP)

Individual Complaints Procedure1st OP to the CCPR

Admissibility Procedure

Inadmissibility Decision

Admissibility Decision

Proceedings on the meritsExamination and deliberation

(confidential)

Decision on the Merits (‘Final Views’)

Violation No Violation

Follow Up

Problems:• Accessibility• Many treaties, many Committees: Which way to choose? • Duplication and ineffectiveness • Visibility • Bindingness, enforcement and follow-up

Solutions:• National monitoring mechanisms (see OPCAT, CRPD): Stronger

role of NHRIs and NGOs in the follow-up• World Court of Human Rights

International Monitoring System

Links:• Human Rights Theme Maps - www.rwi.lu.se/tm/ThemeMaps.html• Atlas of Torture - www.atlas-of-torture.org

Additional readings:• Alfredsson/Grimheden/Ramcharan/Zayas, International Human

Rights Monitoring Mechanisms, Leiden 2009• Nowak, UN Covenant on Civil and Political Rights, CCPR

Commentary, Kehl 2005• Eide/Krause/Rosas, Economic, Social and Cultural Rights,

Dordrecht 2001

Links and Literature