Human Rights Treaties

Committees, Reporting, Communications, and Investigations

New York 2004Lynne Moorhouse

Effects of Treaty Obligations

• In becoming party to a treaty, State undertakes binding legal obligation – State must ensure conformity of national law with treaty

provisions

• Certain NGOs, OHCHR, Bilateral Aid Donors can assist States in drafting national laws to give effect to treaty provisions– OLA has also started a technical assistance programme

• State can sign treaty even if national law not in place – VCLT 1969 requires that on ratification/accession national

laws must be capable of giving effect to treaty that is in force

Depositary vs. Administrative Functions

• S-G, as Depositary:

- Impartially interprets final clauses

- Does not comment on substantive provisions in order to maintain neutrality

- Will not look behind proper instrument

• S-G, as Chief Administrative Officer of United Nations:

- Designates monitoring of treaty (other than depositary functions) to other competent secretariat units

- E.g. DAW, OHCHR

Human Rights Committees

• State implementation of many core human rights treaties is monitored by committees– "treaty monitoring bodies".

• Legal basis for the establishment of most treaty bodies can be found in the treaties themselves.

Exception: the ICESCR, whose Committee was later established by an ECOSOC resolution.

HR Treaties which have Committees

• International Covenant on Economic, Social and Cultural Rights; (ICESCR)

• International Covenant on Civil and Political Rights; (ICCPR)

• Committee against Torture; (CAT)• Elimination of All Forms of Racial Discrimination;

(CERD)• Rights of the Child; (CRC)• Elimination of Discrimination of All Forms of

Discrimination against Women; (CEDAW)• Protection of the Rights of All Migrant Workers and

Members of Their Families.(entered into force on 1 July 2003)

Composition of Committee

• Treaty bodies are composed of independent experts of recognized competence in the field of human rights who are elected by States parties.

• All treaty bodies serviced by Office of the High Commissioner for Human Rights in Geneva, except CEDAW - serviced by the Division for the Advancement of Women in New York.

REPORTING PROCEDURESWhat does the Committee do?

Supports vulnerable groups against heinous violations by States by:

monitoring and overseeing the implementation of the Convention byStates parties

examining and considering reports submitted by States parties

making suggestions and recommendations

What does the Committee do? (cont’d)

Committee never formally pronounces State in violation of Convention: constructive dialogue with States vs. adversarial process

Reports annually on its activities to the GA through ECOSOC

May invite UN specialized agencies and NGOs to submit reports

Purpose of Reporting

1. Ensure State party undertakes comprehensive review of national legislation, administrative rules and procedures to assure conformity with treaty

2. Ensure State party regularly monitors actual situation to assess the extent to which the various rights are being enjoyed by individuals

3. Provide governments a basis for elaboration of policies for implementing treaties

Purpose of Reporting (cont’d)

4. Facilitate transparency of governmental policies

5. Encourage involvement of civil society in formulation, implementation and review of policies

6. Provide a basis for State party and Committee to evaluate progress on the realization of treaty obligations

CEDAW Report Requirements

[Art.18.1]

• On legislative, judicial, administrative or other measures adopted to give effect to the provisions of the Convention and the progress made in this respect

• Submit to the S-G for consideration of the Committee

• Within 1 year after the EIF of the Convention for the State

• Thereafter at least every 4 years and further whenever the Committee so requests

CEDAW Reporting (cont’d)

[Art.18.2]

• Reports may indicate factors and difficulties affecting the degree of fulfillment of obligations under the present Convention

ICCPR Reporting

[Art. 40]

• On measures adopted which give effect to the rights recognized under the provisions of the Convention and the enjoyment of those rights

• Submit to the S-G for consideration of the Committee

• Within 1 year of the EIF of the Covenant for the State

• Thereafter whenever the Committee so requests

How does a State party report to the Committee?

• By ratifying/acceding to a Convention, States parties accept a legal obligation to submit timely and complete reports

• Review Committees’ guidelines

• Many States fail to discharge this obligation

Human Rights Treaty Reporting Problems

• Complexity of human rights system + burden of reporting obligations – Strains resources of Member States and of

Secretariat– Benefits of current system not always clear

• Current structure of human rights committees imposes difficult reporting demands on treaty parties.

Human Rights Treaty Reporting Problems (Cont’d)

• Problems arise from a lack of personnel, experience and resources within the relevant ministry or department.

• An independent expert in 1997 stated: "Non-reporting has reached chronic proportions ... States ... either do not report at all, or report long after the due date“

(E/CN.4/1997/74, paras. 112-113)

Two Measures to Alleviate theShortcomings of the Current System

1. Committees develop coordinated approach to activities and standardize reporting requirements.

2. Each State should produce a single report summarizing its adherence to the full range of human rights treaties to which it is a party.

Reform Proposals: GA and S-G

• GA encouraged review of reporting procedures to – develop coordinated approach– streamline the reporting requirements

• GA requested the United Nations High Commissioner for Human Rights to support this exercise– GA Res. A/57/L.74

• The High Commissioner for Human Rights consults with treaty bodies to submit recommendations to S-G by September 2003

COMMUNICATIONS PROCEDURES

What else does the Committee do?

• Ensure that States are implementing the provisions of the Convention by:

– Hearing and examining State-to-State communications.

[CERD Art.11, ICCPR Art.41, CAT Art. 21, MWC Art. 76]

– Hear and examine communications from Individuals who claim to be victims of a violation by a State party.

[OPICCPR Art.1, OPCEDAW Art.2, CAT Art.22, CERD Art.14]

State-to-State CommunicationsE.g. ICCPR Art. 41.1

• Formal Acceptance[Optional] Declaration recognizing the competence of the Committee to hear State-to-State communications

Must be signed by:- Head of State, Head of Government, or Minister of Foreign Affairs

State-to-State Communications ICCPR Art. 41.1 (cont’d)

• Who can submit a communication? “…a State party which has made a declaration recognizing…the competence of the Committee” will be received and considered.

• Whom can the communication concern? “No communication shall be received by the Committee if it concerns a State party which has not made such a declaration.”

State-to-State Communications ICCPR Art. 41.1 (cont’d)

• Last Resort “The Committee shall deal with the matter…only after it has ascertained that all available domestic remedies have been exhausted…”

• Confidentiality “The Committee shall hold closed meetings

when examining communications under this article.”

Individual Communications Mechanism

• Four treaty bodies have established procedures by which individual communications may be submitted for examination.

1. Human Rights Committee2. Committee on the Elimination of All

Forms of Racial Discrimination3. Committee Against Torture4. Committee on the Elimination of

discrimination Against Women

Individual Communications Mechanism (cont’d)

• Individuals must be within the jurisdiction of States that have formally accepted these procedures

Formal Acceptance of Competence of Committee1) Declaration: must be signed by appropriate authority [CERD Art.14, CAT Art.22]

2) Optional Protocol: separate instrument which must be signed/ratified in addition to the original treaty [CCPROP1, CEDAWOP]

Individual Communications Mechanism (cont’d)

• Criteria for examination:

1) All domestic remedies must have been exhausted

2) The communication must not be anonymous

3) The communication must be about a violation of a specific right provided for in the treaty under which it is submitted

4) Communications cannot be considered if the same matter is being examined under another international procedure of investigation or settlement

Powers of independent investigationof the Committee

E.g. CAT (Art.20), E.g. OPCEDAW (Art.8)

• Article 20 of CAT: Committee can receive information and institute inquiries on allegations of systematic practice of torture in States Parties– competence optional, i.e., at the time of ratifying or

acceding to the Convention, a State may declare that it does not recognize it

• Procedure: confidential character and cooperative with States Parties

• After inquiry, the Committee may include a summary of the results in its annual report; otherwise, all the work and documents are confidential

International Covenant on Civiland Political Rights

State of Emergency

• Article 4.3 “Any State Party to the present Covenant availing itself of the right of derogation (due to state of emergency) shall notify immediately the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the UN, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date it terminates such derogation.”

ICCPR Art. 4 (3)

• Used by States during State of Emergency to notify S-G of derogations under ICCPR

• S-G encourages immediacy of notification to ensure prompt dissemination of information

Implementation/ReportingAssistance

• Office of the High Commissioner for Human Rights• Name: Jane Connors• Email jconnors@ohchr.org• Name: Jan Cedergren• Email jcedergren.hchr@unog.ch

• Division for the Advancement of Women• Name: Carolyn Hannan• Email: hannan@un.org

Copyright Notice

• Copyright 2003 by the United Nations. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, i.e., electronic, mechanical, photocopying, recording, or otherwise, without the written permission of the United Nations