15 Treaty-Based Procedures: Introduction to the Role of UN Treaty-Based Bodies

Prof. Gudmundur Eiriksson

Learning Outcomes

• The chapter introduces the student to different types of supervisory mechanisms
• The student would be well-versed with regard to reporting procedures followed in case of inter-state and individual complaint procedure.
• The chapter would enable the student to analyze in detail, the effectiveness of these procedures.

Introduction to the Role of UN Treaty-Based Bodies

A wide range of mechanisms has been developed for monitoring compliance with international human rights treaties.

There are two types of supervisory mechanisms:

• Treaty-Based Mechanisms: Supervisory mechanisms enshrined in legally binding human rights instruments or conventions. Within the UN framework, these mechanisms are called ‘treaty bodies’, g., the Human Rights Committee and the Committee on the Rights of the Child.
• Non-Treaty-Based Mechanisms: supervisory mechanisms not based on legally binding human rights treaty obligations. Generally, this type of mechanism is based on the constitution or charter of an intergovernmental human rights forum, or on decisions taken by the assembly or a representative body of the forum in question. Under the UN framework, the non-treaty-based mechanisms are referred to as ‘Charter-based’ mechanisms, which include the Human Rights Council complaint procedure (formerly the 1503 procedure), the Universal Periodic Review and ‘special procedures’.

These mechanisms are dealt with in chapter 22 to 25.

The nine major UN Human Rights Treaties are:

• The International Covenant on Economic, Social and Cultural Rights (ICESCR)
• The International Covenant on Civil and Political Rights (ICCPR)
• The International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
• The Convention on the Elimination of All forms of Discrimination against Women (CEDAW)
• The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
• The Convention on the Rights of the Child (CRC)
• The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW)
• The Convention on Rights of Persons with Disabilities (CRPD)
• The Convention for the Protection of All Persons from Enforced Disappearances (CED).

The supervisory procedures established in these treaties can be divided into four main groups:

• Reporting procedures
• Inter-state complaint procedure
• Individual complaint procedure
• Inquiries and other procedures

The Reporting Procedures

Most human rights treaties include a system of periodic reporting. The states parties to them are obliged to report periodically to a supervisory body on the implementation at the domestic level of the treaty in question. As formulated, for example, in Article 40 of the ICCPR, states parties shall ‘submit reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights’. At the UN level, each treaty body has formulated general guidelines regarding the form and contents of the state reports (see UN HRI/GEN/2/Rev.2), and their own rules of procedures (see UN HRI/GEN/3/Rev.1).

The report is analyzed by the relevant supervisory body, which comments on the report and may request the state concerned to furnish more information. In general, reporting procedures under the different treaty-based mechanisms are meant to initiate and facilitate a ‘constructive dialogue’ between the supervisory body and the state party.

The quality of the reports submitted by states varies. Some reports reflect serious efforts to comply with the reporting requirements, while others lack credibility. In any case, the reports generally reflect the view of the respective state. Along with fluctuations in the quality of state reports, the overall compliance with submitting any report at all is often marginal. Many states’ reports are late by several years or simply are not submitted at all. Fortunately, committees often receive information and reports about a country’s human rights situation from other sources, including non-governmental organizations, the UN agencies, other intergovernmental organizations, academic institutions, and the press. The quality of decision-making throughout the reporting procedure depends to a great extent on this additional information that the experts may receive from the external sources. Additional information provided by NGOs and agencies of the United Nations help set forth a wider perspective as to the actual situation in the country concerned. In an increasing number of countries, NGOs prepare and submit alternative or ‘shadow’ reports to the treaty bodies, aimed at counter balancing the information submitted by the state. In the light of all the information available, the committees examine the reports together with government representatives. Based on this dialogue, the committees decide on their concerns about and recommendations to the state concerned, which in their written form are referred to as ‘concluding observations’.

All nine major UN human rights conventions require state party reporting: Article 16 ICESCR, Article 40 ICCPR, Article 9 CERD, Article 18 CEDAW, Article 19 CAT, Article 44 CRC, Article 73 CMW, Article 35 CRPD and Article 29 CED.

The Inter-State Complaint Procedure

Some human rights instruments allow states parties to initiate a procedure against another state party which is thought not to be fulfilling its obligations under the instrument. In most cases, such a complaint may only be submitted if both the claimant and the defendant state have recognized the competence of the supervisory body to receive this type of complaint.

The possibility to lodge complaints against another state party is contemplated in Article 10 Optional Protocol to ICESCR; Article 41 ICCPR; Article 11 CERD; Article 21 CAT; Article 12 Optional Protocol CRC; Article 76 CMW (not yet in force); Article 6 Optional Protocol CRPD; and Article 21 CED.

In reality, however, inter-state complaint mechanisms are rarely used and, indeed, never in the case of the UN treaty-based bodies.

The Individual Complaint Procedure

It seems reasonable that individuals, on whose behalf human rights were stipulated in the first place, should be enabled to initiate proceedings to protect their rights. Such a procedure, whereby an individual holds a government directly accountable before an international supervisory body, aims to afford far-reaching protection to the individual. Several international conventions have created the opportunity for an individual who feels that his or her rights have been violated to bring a complaint alleging a violation of certain treaty rights to the body of experts set up by the treaty for quasi-judicial adjudication or to an international Court, such as the European Court. While there are some procedural variations between the different mechanisms, there are three procedures that all conventions have in common. In order for an individual to bring a case/communication/petition under a human rights convention, the following requirements have to be met: a) the alleged violating state must have ratified the convention invoked by the individual; b) the rights allegedly violated must be covered by the convention concerned; and c) proceedings before the relevant body may only be initiated after all domestic remedies have been exhausted.

Individual complaint mechanisms are found under the nine UN Conventions: Optional Protocol ICESCR; The First Optional Protocol ICCPR; Article 14 CERD; Optional Protocol CEDAW; Article 22 CAT; Article 10 Optional Protocol CRC; Article 77 CMW (not yet in force); Article 1 Optional Protocol CRPD; and Article 31 CED. Individual complaints can be brought only against a state that has recognized the competence of the committee established under the relevant treaty or which is party to the relevant optional protocols. In the case of the ICCPR, ICESCR, CRPD and the CEDAW, a state recognizes the Committees’ competence by becoming a party to an optional protocol, which has been added to the relevant convention. In the case of CAT, CERD and CMW, states recognize the Committees’ competence by making an express declaration under Articles 22 CAT, 14 CERD and 77 CMW. Anyone within the jurisdiction of a state party can lodge a complaint with a committee against a state that satisfies this condition, claiming that his or her rights under the relevant treaty have been violated. There is no formal time limit after the date of the alleged violation for filing a complaint under the relevant treaties, but the victim should submit a complaint as soon as possible after having exhausted domestic remedies.

While there are procedural variations between the different UN treaties, their design and operation are very similar. In general terms, the system works as follows: Once a complaint (which should comply with some basic requirements) is submitted, the case is registered and transmitted to the state party concerned to give it an opportunity to comment. The state is requested to submit its observations within a set time frame. The two major stages in any case are known as the ‘admissibility’ stage and the ‘merits’ stage. The ‘admissibility’ of a case refers to the formal requirements that the complaint must satisfy before the relevant committee can consider its substance. The ‘merits’ of the case are the substance, on the basis of which the committee decides whether or not the rights under a treaty have been violated. Once the state replies to the complaint, the alleged victim is offered an opportunity to comment. Again, the time frames vary somewhat between procedures. At this point, the case is ready for a decision by the relevant committee. If the

state party fails to respond to the complaint the committee may take a decision on the case on the basis of the original complaint. There is no appeal against committees’ decisions. When a committee decides that the state party has violated a right, or rights, enshrined in the treaty, it invites the state party to supply information within a given time limit on the steps it has taken to give effect to the committee’s findings.

Inquiries and Other Procedures

The group of supervisory mechanisms now discussed includes all procedures that do not fall under those mentioned above. Most involve inquiries, but others may entail initiatives aimed at preventing violations or promoting compliance with specific human rights. The supervisory bodies discussed in the previous section play a rather passive role as they generally cannot initiate proceedings, and are largely dependent on information submitted by governments, NGOs or individual petitioners.

Examples of existing inquiry and other procedures include Article 11 Optional Protocol ICESCR, Article 8 Optional Protocol CEDAW, Article 20 CAT, Optional Protocol CAT, Article 13 Optional Protocol CRC, Article 6 Optional Protocol CRPD and Article 32 CED. (See Module 19).

Selecting the Most Appropriate Procedure

In order to determine which supervisory mechanism applies in a specific case, the following considerations may be relevant:

• Which specific human right has been violated?
• Where has the alleged violation taken place?
• Which government is held responsible and to what extent?
• Which convention protects this human right?
• Is the responsible state a party to an applicable human rights treaty? If yes, how does the supervisory procedure work? If no, is there some supervisory procedure outside the relevant convention that could be invoked?

The specific character of a particular procedure has to be taken into consideration. An inter-state mechanism procedure is of a rather political nature, which implies that inter-state relations may be unduly strained. On the other hand, some of the other procedures, especially the individual mechanisms, can have a more confrontational character.

Sometimes, individual complaints are possible both at the universal level (e.g., ICCPR, CAT and CEDAW Optional Protocol) and under a regional system (e.g., European Convention and American Convention). Where the victim has a choice, it may be preferable to lodge the complaint with the regional human rights court (e.g., the European or the Inter-American Court of Human Rights) as their judgments are legally binding on the state party in question and often include explicit decisions on compensation or reparation.

It should be noted that human rights instruments generally prohibit the submission of the same complaint to both a universal and a regional system. For example, the European Convention prevents the admission of a case, which has already been dealt with by the Human Rights Committee (Article 35(2.b)). It is possible, however, to complain before the Human Rights Committee after the European Convention procedure has been exhausted. However, most states parties to the European Convention consider this undesirable and have, therefore, made a declaration at the time of the ratification of the Optional Protocol to the ICCPR which excludes duplication of procedures in the same case. Other states parties, however, allow persons under their jurisdiction to apply the ICCPR procedure after the ECHR procedure.

Effectiveness

The purpose of the various supervisory mechanisms is to combat violations and to promote compliance with human rights treaties. Ideally, such mechanisms should function effectively. There are, however, a number of problems.

Firstly, a large number of countries have either not recognised the competence of the relevant treaty-based mechanisms or have failed to ratify the treaties concerned. Secondly, a number of treaty-based mechanisms, such as the individual complaint mechanism, are victims of their own success. The sometimes overwhelming number of individual complaints has led to a serious delay in the decision procedures, especially under the European Court of Human Rights. Moreover, many procedures for individual communications are understaffed and underfunded. At the UN level, the major shortcoming of the individual complaints procedure is the absence of legally binding judgements. Although the treaty bodies have developed certain ‘follow-up’ mechanisms, such as the ‘Human Rights Committee Special Rapporteur on Follow-up’ there is still much room for improvement.

On the other hand, the most common supervisory mechanism, the examination of reports under the treaty-based reporting mechanisms, also faces problems. The value of reports depends on the depth of research that underpins them, the clarity of their content and the timeliness of their production and delivery schedules. The value and promptness of reports affects the quality of decision-making throughout the system. Unfortunately, some states do not seem to take the reporting system seriously and there are a great number of states that have not submitted reports required under the various treaties. In general, the human rights instruments do not provide for reprimanding delinquent states. Additionally, the submission of reports to all the major human rights supervisory bodies creates practical difficulties for many states. At present, the reports are overwhelming in number and tend towards duplication. This creates a serious burden for states, especially for developing countries, which have to submit numerous reports. The same problem is encountered by the Secretariat, which needs to struggle to keep abreast of the growing number of reports requested by the various intergovernmental bodies. The sheer volume of reports is challenging the supervisory bodies’ capacity to provide focused and value-added analysis. Several proposals have been put forth with the aim to strengthen the treaty body system. One is the ‘common core document’ wherein states would avoid duplication by providing more general information including information relating to substantive treaty provisions congruent across all or several treaties. This core document, which would minimize repetition of information in states’ reports to the treaty bodies, would be updated regularly and submitted to each committee in tandem with targeted treaty-specific reports.

The non-treaty-based procedures are also encountering serious difficulties. Not only are the mechanisms political by nature, but the examination of violations often takes a long time. Moreover, some of these bodies, which act in regular meetings, are not well designed to respond to situations that require urgent actions. The ‘mobilization of shame’, one of the tools employed by the Charter-based procedures, can, however, be very effective.

It could be argued that a centralized system, either for the UN treaties or more generally, would enhance supervision. This, however, does not appear attainable for the time being, given the diversity of the human rights obligations and the institutions charged with the supervision. The supervisory mechanisms are the product of specific decision-making processes, which cannot be simply unified. At the UN level, it is one of the major tasks of the High Commissioner for Human Rights to improve the organization and co-ordination of the activities of the various supervisory systems.

Finally, it is worth noting that any improvement in the supervisory systems requires the support of states. It is fair to say that such support is often lacking, and states seem reluctant to encourage rigorous scrutiny of their human rights records. In these circumstances, NHRIs, NGOs and civil society are crucial to the strengthening of the human rights supervisory mechanisms. For example, the participation of NGOs in the reporting process may help to ensure that reports are submitted on time and that they are well prepared. In general, NGOs should play an active role in lobbying for states to pay more attention to the human rights supervisory systems.

Conclusion

• Any improvement in the supervisory systems requires the support of states. Such support is often lacking, and states seem reluctant to encourage rigorous scrutiny of their HR records.
• In these circumstances, NHRIs, NGOs and civil society are crucial to the strengthening of the HR supervisory mechanisms. The participation of NGOs in the reporting process may help to ensure that reports are submitted on time and that they are well prepared.
• In general, NGOs should play an active role in lobbying for states to pay more attention to the HR supervisory systems.

Reference 

1. Human Rights Law: Teaching Material, prepared by Demelash Shiferaw, & Yonas Tesfa. Available at https://chilot.files.wordpress.com/2011/06/human-rights-law.pdf
2. International Human Rights Law, Dennis Patterson and Anna Södersten
3. Philippine National Report to the Human Rights Council, For the Universal Periodic Review
4. Convention on the Rights of Persons with Disabilities (CRPD), Implementation Toolkit.

Available at http://www.dpinorthamericacaribbean.org/Convention%20on%20the%20Rights%20of%20Per sons%20with%20Disabilities%20Implementation%20Toolkit.pdf