16 Treaty Based Bodies. Part A

Prof. Gudmundur Eiriksson

Introduction

The UN plays a pre-eminent role in the field of standard-setting. The former UN Commission on Human Rights often took the initiative of drafting human rights standards, frequently in co-operation with the Sub-Commission on the Promotion and Protection of Human Rights. Elements for new instruments are often taken from proposals by one country, from final documents of colloquia and round table meetings, and especially from submissions by NGOs. The process has not been standardised. It has become accepted to submit texts for technical review by individual experts or expert bodies. In addition, texts are often submitted to governments after a first reading for comments, after which, in a second reading procedure, outstanding issues are tackled.

The drafting of texts can be a very taxing effort, not guaranteeing a flawless process. It took, for example, more than 15 years to draft the ICCPR and the ICESCR. On the other hand, one of the latest conventions, the Convention on the Rights of Persons with Disabilities (CRPD), was negotiated during eight sessions of an Ad Hoc Committee of the General Assembly from 2002 to 2006, making it the fastest negotiated human rights treaty in history. Guidelines for drafting may be found in UNGA Resolution 41/120, which stipulates that only clear, meaningful, consistent proposals, commanding large support, should be considered. The Commission on the Status of Women (CSW) and the Commission on Crime Prevention and Criminal Justice (CCPCJ) are also involved in standard-setting within their areas of competence. The CSW drafted, for instance, the Optional Protocol to CEDAW.

To supervise compliance with the standards formulated, a wide range of mechanisms has been established in the UN system in the past fifty years. A distinction can be made between treaty-based procedures, such as the Human Rights Committee, and charter-based procedures, such as the appointment of special rapporteurs. On the latter, see modules 14 and 15.

Mention must also be made of the Universal Declaration of Human Rights, which, together with the Covenants, forms the Universal Bill of Human Rights and is considered the major human rights standard, although, as a declaration, it is not accompanied by a specific supervisory procedure.

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).

Each of these treaties has a supervisory body. These bodies consist of experts of high moral character and recognised competence in the field of human rights. They act in their personal capacity, which means that although they are normally nationals of a state party to the treaty in question, they are not acting under instructions from the respective governments. The treaty-based procedures are the mechanisms established within the context of a specific human rights treaty. CERD (1965) was the first human rights treaty of universal application to provide for a mechanism of supervision. This mechanism subsequently served as a model for other human rights treaties, notably ICCPR. The treaty bodies, with the exception of the Committee on Economic, Social and Cultural Rights, derive their status from the treaty concerned. To implement these treaties, regular meetings of states parties are held to discuss issues regarding the treaties, mainly in connection with the election of members to the treaty bodies. There are different types of supervisory procedures: reporting procedures, inter-state complaint procedures, individual complaint procedures and inquiry procedures.

The UN Human Rights Treaties and their Supervisory Bodies

The ICESCR and the Committee on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by the UNGA in Resolution 2200 A (XXI) of 16 December 1966. It entered into force on 3 January 1976. As of June 2015, 164 states were party to the Covenant.

The Preamble of the Covenant recognises, inter alia, that economic, social and cultural rights derive from the ‘inherent dignity of the human person’ and that ‘the ideal of free human beings enjoying freedom of fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as civil and political rights’.

The Covenant recognises the right to work (Article 6); the right to just and favourable conditions of work (Article 7); the right to form and join trade unions and the right to strike (Article 8); the right to social security including social insurance (Article 9); the right to protection and assistance for the family and the prohibition of child labour (Article 10); the right to an adequate standard of living for oneself and one’s family, including adequate food, clothing and housing, and to the continuous improvement of living conditions (Article 11); the right to the highest attainable standard of physical and mental health (Article 12); the right to education, the freedom of parents to choose schools other than those established by public authorities (Articles 13 and 14) and the right to take part in cultural life and to benefit from scientific progress (Article 15).

The Committee on Economic, Social and Cultural Rights is responsible for monitoring implementation of the Covenant. Originally, the ECOSOC had delegated this work to a working group of government experts. In 1985, however, the ECOSOC decided to convert the working group into a Committee on Economic, Social and Cultural Rights. The Committee is made up of 18 experts acting in their personal capacity. The election of members takes place in the ECOSOC by means of a secret ballot based on a list of candidates put forward by the states parties to the Covenant. Members of the Committee are elected for a period of four years and may stand for re-election. The Committee reports to the ECOSOC and may also make recommendations. The Committee formally took up its duties on 1 January 1987.

The original supervisory mechanism envisaged in the ICESCR was the reporting procedure. States that are party to the Covenant are required to submit reports about the realisation of the rights recognised in the Covenant to the UN Secretary-General, who transmits them to the ECOSOC (Articles 16 to 21 ICESCR). The Committee on Economic, Social and Cultural Rights is responsible for studying the reports. Reporting is based on a five-year cycle.

The question of adopting an Optional Protocol to the ICESCR providing for a system of individual and collective complaints such as that in place as for violations of civil and political rights was under consideration by the international community for decades. Finally, in June 2008, the text of an Optional Protocol was adopted by the Human Rights Council, subsequently adopted by the UNGA on 10 December 2008, on the 60th Anniversary of the Universal Declaration of Human Rights. The Optional Protocol entered into force on 5 May 2013. As of June 2015, 20 states were party to the Optional Protocol.

The Optional Protocol provides for the following additional supervisory mechanisms:

a) Inter-state complaint mechanism (Article 10). A state party to the Optional Protocol may declare that it recognises the competence of the Committee to receive and consider communications from states parties which have made such declarations to the effect that another state party which has made such a declaration is not fulfilling its obligations under the Covenant. The state party shall first bring the matter to the attention of the other state party concerned. The receiving state shall within three months provide the sending state with an explanation or statement clarifying the matter. If the matter is not settled within six months either state may refer the matter to the Committee. If satisfied that all available domestic remedies have been exhausted, the Committee shall examine the matter and may call on the states concerned to supply any relevant information. The Committee shall with all due expediency submit a report setting forth the relevant facts and may also communicate only to the states concerned any views that it may consider relevant to the issue between them. The Committee shall make available its good offices with a view to the friendly solution of the matter.

b) Individual and collective complaints mechanism (Articles 1 and 2). A state party by becoming party to the Optional Protocol recognises the competence of the Committee to receive and consider communications from or on behalf of individuals or groups of individuals under its jurisdiction claiming to be victims of violations of the rights set out in the Covenant. If the Committee is satisfied that the matter has not been, and is not being, examined in another international context, and that all available domestic remedies have been exhausted, it shall bring the communication confidentially to the attention of the state concerned. The state shall submit its explanations or statements and the remedy, if any. After examination, the Committee shall transmit its views to the parties, together with its recommendations, if any. The state shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a written response, including information on any action taken in the light of the views and recommendations. The Committee may invite the state to submit further information about any measures it has taken in response to its views or recommendations. At any time after the receipt of a communication the Committee may request that a state take such interim measures as may be necessary in exceptional circumstances to avoid possible irreparable damage to the victims of the alleged violation. The Committee shall also make available its good offices with a view to reaching a friendly settlement.

c) Inquiry procedure (Article 11). A state party to the Optional Protocol may declare that it recognises the competence of the Committee to initiate an inquiry procedure. If the Committee receives reliable information indicating grave or systematic violations by a state party of the rights set forth in the Covenant, it shall invite the state to submit its observations. The Committee may designate one or more of its members to conduct an inquiry and to report urgently to it. Where warranted and with the consent of the state party, the inquiry may include a visit to its territory. After examining the findings of the inquiry, the Committee shall transmit them to the state concerned together with any comments and recommendations. The state shall submit its observations to the Committee within six months of receiving the findings. The Committee may, after consultations with the state, include a summary account of the proceedings in its annual report of its activities. Inquiries shall be conducted confidentially and the cooperation of the state in question shall be sought at all stages of the proceedings.

The ICCPR and the Human Rights Committee

The International Covenant on Civil and Political Rights (ICCPR) was adopted by UNGA Resolution 2200 A (XXI) of 16 December 1966. It entered into force on 23 March 1976. As of June 2015, 168 states were party to the Covenant.

Part I of the Covenant contains only one article, Article 1, on the right to self-determination, which is identical to Article 1 ICESCR. Part II of the Covenant contains Articles 2 to 5, which refer to the nature of obligations, the territorial and personal scope of the Covenant and the principle of non-discrimination (Article 2) which is complemented by Article 3, guaranteeing the equality between men and women in the enjoyment of the Covenant rights. Article 4 allows states to take measures derogating from their obligations under the Covenant and Article 5 establishes a prohibition of abuse of rights (Article 5(1)) and a saving clause (Article 5(2)). Part III of the Covenant contains the following substantive rights: the right to life (Article 6); freedom from torture, inhuman and degrading treatment or punishment (Article 7); freedom from slavery, servitude and forced labour (Article 8); rights to liberty and security of the person (Article 9); right of detained persons to humane treatment (Article 10); freedom from imprisonment for inability to fulfil a contract (Article 11); freedom of movement (Article 12); right of aliens to due process when expelled (Article 13); right to a fair trial (Article 14); freedom from retroactive criminal law (Article 15); right to recognition as a person before the law (Article 16); right to privacy (Article 17); freedom of thought, conscience, and religion (Article 18); freedom of opinion and expression (Article 19); freedom from war propaganda and freedom from incitement to racial, religious or national hatred (Article 20); freedom of assembly (Article 21); freedom of association (Article 22); right of protection of the family and the right to marry (Article 23); right of protection of the child (Article 24); right of participation in public life (Article 25); right to equality before the law and right of non-discrimination (Article 26); and rights of minorities (Article 27).

The supervisory mechanism established in the ICCPR is the Human Rights Committee. The Committee is an organ established under Article 28 ICCPR. It is made up of 18 experts who are elected by the states parties to the Covenant in their personal capacity for a period of four years.

An Optional Protocol to the Convention on an individual complaints procedure was adopted by the UNGA in Resolution 2200A (XXI) of 16 December 1966. It entered into force on 23 March 1976. As of June 2015, 115 states were party to the Optional Protocol.

The following supervisory mechanisms exist under the ICCPR and its First Optional Protocol:

a) Reporting mechanism (Article 40). All states parties to the Covenant must submit a report one year after the Covenant has come into effect for them, describing the measures which they have taken to implement the rights recognised in the Covenant and the progress made in the enjoyment of those rights. In addition, the Committee has established that each state party must submit a report every five years.

b) Inter-state complaint procedure (Articles 41 to 43). A state party may declare that it recognises the competence of the Committee to receive and consider communications from states parties which have made such declarations to the effect that another state party which has made such a declaration is not fulfilling its obligations under the Covenant. The state party shall first bring the matter to the attention of the other state party concerned. The receiving state shall within three months provide the sending state with an explanation or statement clarifying the matter. If the matter is not adjusted to the satisfaction of the states concerned within six months either state may refer the matter to the Committee. If satisfied that all available domestic remedies have been invoked and exhausted, the Committee shall examine the matter and may call on the states concerned to supply any relevant information. The Committee shall within 12 months submit a report confined to a brief statement of the facts. The Committee shall make available its good offices with a view to the friendly solution of the matter. If the matter is not resolved to the satisfaction of the states concerned, the Committee may, with the consent of the states, appoint an ad hoc Conciliation Commission. The good offices of the Conciliation Commission shall be made available to the states concerned with a view to an amicable resolution of the matter. When the Commission has fully considered the matter, but in any event within 12 months, it shall submit a report to the Chairman of the Committee for communication to the states concerned, embodying, if no amicable settlement has been reached, its findings on all questions of fact relevant to the issue and its views on the possibilities of an amicable solution. The parties which shall within three months indicate whether they accept the contents of the report.

c) Individual complaints mechanism (First Optional Protocol). A state party by becoming party to the Optional Protocol recognises the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction claiming to be victims of violations by that state of the rights set forth in the Covenant. If the Committee is satisfied that the matter is not being examined in another international context, and that all available domestic remedies have been exhausted, it shall bring the communication to the attention of the state concerned. The state shall submit its explanations or statements and the remedy, if any. After examination, the Committee shall forward its views to the state and the individual.

The Committee has a solid and respectable record in examining country reports and individual complaints. When a country report is being considered, representatives of the state concerned are invited to present the report at a public session. Members of the Committee then have an opportunity to question the representatives, which they sometimes do in a forceful and critical manner. Over the years, NGOs have begun to play a substantive role in the procedure. In addition, the ICCPR stipulates that the Committee may formulate General Comments on the reports it has considered (Article 40(4)). The Committee has made highly creative use of these powers by publishing a series of General Comments over the years, which include an authoritative explanation and elaboration of various material provisions of the Covenant. For an overview of the Committee’s work, see module 20.

A Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty was adopted by the UNGA in Resolution 44/128 of 15 December 1989. It entered into force on 11 July 1991. As of June 2015, 81 states were party to the Second Optional Protocol.

3. The CERD and the Committee for the Elimination of Racial Discrimination

The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) was adopted by the UNGA in Resolution 2106 A (XX) of 21 December 1965. It entered into force on 4 January 1969. As of June 2015, 177 states were party to the Convention.

The CERD contains a number of detailed prohibitions and obligations to prevent discrimination on the grounds of race, colour, origin and national or ethnic background. It condemns in particular racial segregation and apartheid (Article 3) and propaganda and promotion of discrimination are prohibited (Article 4). Furthermore, non-discrimination in relation to specific rights, such as the right to equal treatment before tribunals, the right to marriage, the right to housing and freedom of opinion and expression are set out (Article 5). Finally, states parties shall assure effective protection and remedies against acts of racial discrimination (Article 6) and states pledge to combat prejudices that lead to racial discrimination (Article 7).

The Convention provides for a Committee on the Elimination of Racial Discrimination (Article 8), consisting of 18 experts elected in their personal capacity by states parties to the Convention for a period of four years.

The CERD supervisory mechanisms are the following:

a) Reporting mechanism (Article 9). States parties shall submit to the Committee reports on the legislative, judicial, administrative or other measures that they have adopted and that give effect to the provisions of the Convention. These reports shall be submitted one year after entry into force of the Convention for the state concerned, and, thereafter, every four years or whenever the Committee so requests. The Committee is also entitled to request further information from the states. The Committee reports on its activities annually to the UNGA and may make suggestions and general recommendations based on the examination of the reports and information received. The system of reporting has developed into the most important monitoring procedure under the CERD. NGOs play a significant role in the procedure.

b) Inter-state complaint mechanism (Articles 11 to 13). If a state party considers that another state party is not giving effect to the provisions of the Convention, it may bring the matter to the attention of the Committee. The Committee shall transmit the communication to the state concerned. Within three months, the receiving state shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, adopted by that state. If satisfied that all available domestic remedies have been invoked and exhausted, the Committee shall deal with the matter and may call on the states concerned to supply any other relevant information. After the Committee has obtained and collated all the information it thinks necessary the Chairman shall appoint an ad hoc Conciliation Commission. The good offices of the Conciliation Commission shall be made available to the states concerned with a view to an amicable resolution of the matter. When the Commission has fully considered the matter, it shall submit a report to the Chairman of the Committee embodying its findings on all questions of fact relevant to the issue and containing such recommendations as it may think proper for the amicable settlement of the dispute. The Chairman shall communicate the report to the parties which shall within three months indicate whether they accept the recommendations. Thereafter, the Chairman shall communicate the report and the declarations of the parties to the other states parties to the Convention.

c) Individual complaints mechanism (Article 14). Under Article 14 a state party may declare that it recognises the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that state of any of the rights set forth in the Convention. The Committee shall confidentially bring the communication to the attention of the state concerned and the state will have three months to submit explanations or statements clarifying the matter and the remedy, if any. After ascertaining that all available domestic remedies have been exhausted, the Committee shall consider the communication and forward its suggestions and recommendations, if any, to the state concerned and the petitioner.

The CEDAW and the Committee on the Elimination of Discrimination against Women

The Convention on the Elimination of All forms of Discrimination against Women (CEDAW) was adopted by the UNGA in Resolution 34/180 of 18 December 1979. It entered into force on 3 September 1981. As of June 2015, 189 states were party to the Convention, many with a considerable number of reservations that have significantly undermined the effectiveness of the Convention.

Part I of the Convention contains general standards. Article 2 and 3 set out different measures that states undertake to eliminate discrimination against women and to ensure their full development and advancement. These measures include the adoption of appropriate legislative measures and refraining from engaging in any acts of discrimination against women. Article 4 sets out that ‘affirmative action’ and measures aimed at protecting maternity will not be considered discriminatory, and Article 5 stipulates that states shall take all appropriate measures to modify cultural patterns that perpetuate discrimination, and ensure that family education includes an understanding of maternity as a social function. Finally, states undertake to suppress trafficking and exploitation of prostitution of women (Article 6). Part II sets out that states must take measures to eliminate discrimination as regards certain fields. States must ensure to women on equal terms with men, inter alia: the right to participation in political and public life (Article 7); the opportunity to represent their governments internationally (Article 8); and the right to change and retain their and their children’s nationality (Article 9). Part III of the Convention sets out that states must take appropriate measures to eliminate discrimination in regard to certain social and economic issues: education (Article 10); work, including on the grounds of marriage and maternity (Article 11); health (Article 12); and the right to benefits and loans and to participate in cultural life (Article 13). The particular problems faced by rural women and measures that states undertake to eliminate discrimination against this group are also contemplated (Article 14). Part IV establishes equality before the law (Article 15) and that states must undertake measures to eliminate discrimination in relation to marriage and family relations (Article16).

Under Article 17, the Committee on the Elimination of Discrimination against Women is responsible for supervising compliance with the Convention. The Committee is composed of 23 experts (lawyers, teachers, diplomats and experts on women’s affairs), acting in their individual capacity. The members are elected for a period of four years by the states parties to the Convention.

Under the Convention itself the only supervisory mechanism established is the reporting system. In accordance with Article 18, each state party is required to report to the CEDAW Committee on the measures taken to comply with the Convention within one year of its becoming a party. Subsequently, every four years a periodic report is due. Although the responsibility for drafting the reports lies with the government, NGOs can also be involved in order to produce as complete a picture of the situation in the country as possible.

An Optional Protocol to the Convention on an individual complaints mechanism and an inquiry procedure was adopted by the UNGA in Resolution A/RES/54/4 of 6 October 1999. The Optional  Protocol entered into force on 22 December 2000. As of June 2015, 106 states were parties to the Optional Protocol.

The Optional Protocol provides for two additional supervisory mechanisms:

a) Individual and collective complaints mechanism (Article 1). A state party by becoming party to the Optional Protocol recognises the competence of the Committee to receive and consider communications from or on behalf of individuals or groups of individuals under its jurisdiction claiming to be victims of violations of the rights set forth in the Convention. If the Committee is satisfied that the matter has not been, and is not being, examined in another international context, and that all available domestic remedies have been exhausted, it shall bring the communication confidentially to the attention of the state concerned. The state shall submit its explanations or statements clarifying the matter and the remedy, if any. After examination, the Committee shall transmit its views to the parties, together with its recommendations, if any. The state shall, within six months, submit its explanations or statements and the remedy, if any. After examination, the Committee shall transmit its views to the parties, together with its recommendations, if any. The state shall give due consideration to the views of the Committee, together with its recommendations, if any, and shall submit to the Committee, within six months, a response, including information on any action taken in the light of the views and recommendations. The Committee may invite the state to submit further information about any measures it has taken in response to its views or recommendations. At any time after the receipt of a communication the Committee may request that a state take such interim measures as may be necessary to avoid possible irreparable damage to the victims of the alleged violation.

b) Inquiry procedure (Article 8). If the Committee receives reliable information indicating grave or systematic violations by a state party of rights set forth in the Convention, it shall invite the state to submit its observations. The Committee may designate one or more of its members to conduct an inquiry and to report urgently to it. Where warranted and with the consent of the state party, the inquiry may include a visit to its territory. After examining the findings of the inquiry, the Committee shall transmit them to the state concerned together with any comments and recommendations. The state shall submit its observations to the Committee within six months of receiving the findings. The Committee may thereafter invite the state concerned to inform it of the measures taken in response to the inquiry. Inquiries shall be conducted confidentially and the cooperation of the state in question shall be sought at all stages of the proceedings. The Protocol includes an ‘opt-out clause’, allowing states upon ratification or accession to declare that they do not accept the inquiry procedure (Article 10).

The editors are indebted to the authors of the Human Rights Reference Handbook (5th edition, Reykjavik, 2010) for permission to use their work as a basis for various modules of  this paper. The updating of information and final presentation is, however, our responsibility alone. (The publishers are the Icelandic Human Rights Centre, Reykjavik, Iceland and the University for Peace, Ciudad Colon, Costa Rica. The authors of the Fifth Edition were Magdalena Sepúlveda, Theo van Banning, Guðrún D. Guðmundsdóttir, Christine Chamoun and Willem J.M. van Genugten.)

Reference 

• The editors are indebted to the authors of the Human Rights Reference Handbook (5th edition, Reykjavik, 2010) for permission to use their work as a basis for various modules of this paper. The updating of information and final presentation is, however, our responsibility alone. (The publishers are the Icelandic Human Rights Centre, Reykjavik, Iceland and the University for Peace, Ciudad Colon, Costa Rica. The authors of the Fifth Edition were Magdalena Sepúlveda, Theo van Banning, Guðrún D. Guðmundsdóttir, Christine Chamoun and Willem J.M. van Genugten.)