Ludwig Boltzmann Institut für Menschenrechte
Ludwig Boltzmann Institute of Human Rights
3.
Human Rights Treaties and
Monitoring Mechanisms
Julia Kozma and Moritz Birk
University of Vienna
Ludwig Boltzmann Institute of Human Rights, Vienna
Overview
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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
Universal Declaration of Human Rights (UDHR)
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)
The Core Human Rights Treaties
• 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)
Ratifications of Human Rights Treaties
1990 - 2010
200
193
186
180
173
166
160
160
147
140
185
133
134
129
151
146
128
120
End of 1990
104
100
92
97
95
End of 1995
December 2010
80
63
55
60
43
40
19
20
6
0
0
CCPR
CESCR
CAT
CERD
CEDAW
CRC
MWC
CRPD
CED
Treaty Bodies
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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)
State Reporting Procedure
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Obligatory in all treaties - initial, periodic and supplementary (e.g.
emergency) reports
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Preparation of the report at the domestic level (NGO input?)
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Public examination by the treaty monitoring body (informal role of
NGOs)
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Concluding observations (country-specific) and general comments
(published in the annual report)
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Follow-up (important role of NGOs)
Individual Complaints Procedure
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Optional (Protocols, Declarations)
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Quasi-judicial bodies: proactive, decisions of high quality but not
legally binding (“views”/”observations”)
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No enforcement or political follow-up
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Accessibility: Recognition by State of origin, only written
submissions; admissibility
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Relatively few cases
Acceptance of Individual Complaints
120
113
99
100
80
64
58
60
December 2010
45
40
20
3
7
2
0
OPCCPR
OPCAT,
CESCR Art. 22
CERD CEDAW
MWC
CRPD
CED
Inquiry Procedure
(Article 20 CAT, OP 1 CEDAW)
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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
International Covenant on Civil and Political Rights (CCPR)
- 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 nondiscrimination (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): countryspecific 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
Economic, Social and Cultural Rights (CESCR)
- 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): countryspecific 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 Convention on the Elimination
of All Forms of Racial Discrimination (CERD)
- 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.
Convention on the Elimination All Forms of
Discrimination against Women (CEDAW)
- 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): countryspecific 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 against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT)
- 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 on the Rights of the Child (CRC)
- 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 Protection of the Rights of All Migrant
Workers and Members of Their Families (MWC)
- GA Res. 45/158 of 18 December 1990
- Entry into force: 1 July 2003
- 43 States parties (few industrialized States where migrant workers live)
Contents
Provides 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)
International Convention on the Rights of Persons with
Disabilities (CRPD)
- GA Res. 61/106 of 13 December 2006
- Entry into force: 3 May 2008
- 95 States parties
Contents
Far-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 for the Protection of All Persons
from Enforced Disappearance (CED)
- GA Res. 61/177 of 20 December 2006
- not yet in force: requires 20 ratifications, to date 19
Contents
Provision 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)
Other Major UN Human Rights Treaties
(indicating years of adoption and entry into force)
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Slavery Convention (1926/27)
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Protocol amending the 1926 Slavery Convention (1953/53)
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Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery (1956/57)
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Convention on the Prevention and Punishment of the Crime of Genocide (1948/51)
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Four Geneva Conventions on Humanitarian Law (1949/50)
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Two Protocols Additional to the Geneva Conventions (1977/78)
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Convention Relating to the Status of Refugees (1951/54)
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Protocol Relating to the Status of Refugees (1967/67)
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Convention on the Political Rights of Women (1952/54)
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Convention Relating to the Status of Stateless Persons (1954/60)
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Convention on the Reduction of Statelessness (1961/75)
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Convention on Consent to Marriage, Minimum Age for Marriage and Registration of
Marriages (1962/64)
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International Convention on the Suppression and Punishment of the Crime of
Apartheid (1973/76)
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International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (1990/2003)
Individual Complaints Before UN Treaty
Monitoring Bodies
(1976 – 2010)
Treaty
number of cases registered
CCPR
1.964
731
421
164
CERD
45
24
CEDAW
14
5
CAT
number of cases
decided on the merits
Individual Complaints Procedure
1st 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 Procedure
1st OP to the CCPR
Admissibility
Procedure
Inadmissibility
Decision
Admissibility
Decision
Proceedings on the merits
Examination and deliberation
(confidential)
Decision on the
Merits (‘Final Views’)
Violation
Follow Up
No Violation
International Monitoring System
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
Links and Literature
Links:
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Human Rights Theme Maps - www.rwi.lu.se/tm/ThemeMaps.html
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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