Monitoring - Ludwig Boltzmann Institut für Menschenrechte

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Monitoring - Ludwig Boltzmann Institut für Menschenrechte

Ludwig Boltzmann Institut für MenschenrechteLudwig Boltzmann Institute of Human Rights3. Human Rights Treaties andMonitoring MechanismsJulia Kozma and Moritz BirkUniversity of ViennaLudwig Boltzmann Institute of Human Rights, Vienna


Overview• The Universal Declaration of Human Rights (UDHR)• The core human rights treaties and their status ofratification• Treaty bodies and monitoring mechanisms• Overview of the individual human rights treaties –content and monitoring• Functioning of the individual complaint procedure – bythe example of the ICCPR• International treaty monitoring system – problems andpossible solutions


Universal Declaration of Human Rights (UDHR)GA Res. 217 A (III), 10 December 1948• Most fundamental international human rights document presupposinghuman rights as the “foundation of freedom, justice and peace in theworld” (Preamble)• Not binding (“a common standard of achievement”), but partsconstitute customary international law• Authoritative interpretation of the term ‘human rights’ in the UNCharter• Incorporated in many national constitutions and referred to in manyinternational human rights treaties• Includes civil, political, economic, social and cultural rights and areference 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 DegradingTreatment or Punishment (CAT, 1987)• Convention on the Protection of the Rights of All Migrant Workers andMembers 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 Treaties1990 - 2010200186193185180160166160147146173151140133 134129128120100929710495End of 1990End of 1995December 20108060556340432001960CCPR CESCR CAT CERD CEDAW CRC MWC CRPD CED


• Each treaty is monitored by a Committee composed of independentexperts (between 10-25), elected by the State parties (exceptionComESCR – elected by ECOSOC)• The CCPR and CRC Committees meet three times a year, theCMW Committee once and the other treaty bodies twice• Serviced by the OHCHR in Geneva• Issue non-binding General Comments/Recommendations• Monitoring mechanisms:−−−−−Treaty BodiesState Reporting procedure – obligatoryIndividual Complaints procedure (all but CRC) - optionalInquiry Procedure (CAT, CEDAW) – opt out possibilityFact-finding visits (SPT, CED Committee)National monitoring (OPCAT, CRPD)


State Reporting Procedure• 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 ofNGOs)• Concluding observations (country-specific) and general comments(published in the annual report)• Follow-up (important role of NGOs)


Individual Complaints Procedure• Optional (Protocols, Declarations)• Quasi-judicial bodies: proactive, decisions of high quality but notlegally binding (“views”/”observations”)• No enforcement or political follow-up• Accessibility: Recognition by State of origin, only writtensubmissions; admissibility• Relatively few cases


Acceptance of Individual Complaints120100113998060644558December 201040200OP-CCPR3OP-CESCRCAT,Art. 222CERD CEDAW MWC CRPD CED7


Inquiry Procedure(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-foundedindications of the systematic violations (information frequently provided byNGOs)• 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 rightof self-determination (article 1), right to equality and nondiscrimination(article 26), rights of persons belonging tominorities (article 27) and prohibition of propaganda for war andincitement to discrimination, hostility or violence (article 20).• Second Optional Protocol, aiming at the abolition of the deathpenalty (GA Res. 44/128 of 15 December 1989, entry into forceon 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): countryspecificrecommendations• General comments: essential interpretative views, 33 to date• Inter-state communication procedure (article 41); no casesto date• Individual communication procedure under the 1stOptional Protocol to the CCPR (1966/76, 113 states parties):similar to the procedure before the European Court of HumanRights, total cases 1964, 402 cases pending, 557 inadmissibleand 274 discontinued cases; 731 views, 589 violations found(as of 08/2010)


International Covenant onEconomic, 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 internationalassistance and co-operation- To the maximum of its available resources- With a view to achieving progressively the full realization of therights 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 onEconomic, Social and Cultural Rights (CESCR)Monitoring• Committee on Economic, Social and Cultural Rights (notprovided in the treaty, established by ECOSOC, Res.1985/17): 18experts• State reporting procedure – mandatory (articles 16, 17): countryspecificrecommendations• General comments: essential interpretative views, 21 to date(08/2010)• Individual communication procedure, Optional Protocol,adopted 10 December 2008, in force with tenth ratification (presentlythree accessions)


- GA Res. 2106A (XX) of 21 December 1965- Entry into force: 4 January 1969- 173 states partiesContents (I)International Convention on the Eliminationof All Forms of Racial Discrimination (CERD)• 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 impairingthe recognition, enjoyment, or exercise…of human rightsand fundamental freedoms• Not applicable between citizens and non-citizens – article 1(2)• Affirmative action is permissible (special measures taken for thesole purpose of securing adequate advancement of certain racial orethnic groups or individuals) – article 1(4)


International Convention on the Eliminationof 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 ofspecified rights – article 5- To assure to everyone within their jurisdiction effective protection andremedies against any acts of racial discrimination – article 6Monitoring• Committee on the Elimination of Racial Discrimination: 18 experts• State reporting procedure – mandatory (article 9): country-specificrecommendations• General Recommendations: essential interpretative views, 33 to date• Inter-state communication procedure: mandatory (article 11); not effective, nocases to date• Individual communication procedure: optional (following state declaration, article14). In place since 1982, 54 declarations, 45 cases in total, 4 cases pending, 24views, 10 violations (07/2010). States may establish a special national body toreceive and examine complaints.


- GA Res. 34/180 of 18 December 1979- Entry into force: 3 September 1981- 186 States partiesContentsConvention on the Elimination All Forms ofDiscrimination against Women (CEDAW)• Basic principle: elimination and prohibition of all discriminationagainst women – article 2• Affirmative action is permissible – article 4• Provisions on women’s political rights (articles 7 – 9); social andeconomic rights (articles 10 – 14); equality before the law and familyrights (articles 15 – 16); special provisions on trafficking in women(article 6) and rights of rural women (article 14).


MonitoringConvention on the Elimination All Forms ofDiscrimination against Women (CEDAW)• Committee on the Elimination of Discrimination AgainstWomen: 23 experts• State reporting procedure – mandatory (article 18): countryspecificrecommendations• General Recommendations: essential interpretative views, 26 todate• No Inter-state communication procedure• Individual communication procedure under the 1st OP toCEDAW: GA Res. 54/4 of 6 October 1999, entry into force on 22February 2000, 99 states parties, 14 cases decided to date (lastcase in 2008)• Inquiry procedure under the same 1st OP to CEDAW in caseswhere the Committee has received reliable information of gross andsystematic violations (OP article 8); possible to opt out at ratification(OP article 10); one case completed (Mexico)


Convention against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment (CAT)- GA Res. 39/46 of 10 December 1984- Entry into force: 26 June 1987- 147 states partiesContents• 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 criminallaw (article 4)- Universal jurisdiction (articles 5 to 8): principle ‘aut dedereaut judicare’


Convention against Torture and Other Cruel, Inhuman orDegrading 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 ofdetention (International Subcommittee and National PreventiveMechanisms), 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 culturalrights 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 inall actions concerning children (article 3)- Prohibition of discrimination (article 2)- Right to life and development of the child to the maximumextent (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: GARes. 54/263 of 25 May 2000; entry into force 12 February 2002; 139States parties• Optional Protocol on the sale of children, child prostitution and childpornography: GA Res. 54/263 of 25 May 2000; entry into force 18 January2002; 141 states partiesMonitoring• 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 MigrantWorkers 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)ContentsProvides for a comprehensive list of civil, political, economic, social andcultural rights of migrant workers and their familiesMonitoring• 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 havesubmitted declarations (to date only Guatemala and Mexico)


International Convention on the Rights of Persons withDisabilities (CRPD)- GA Res. 61/106 of 13 December 2006- Entry into force: 3 May 2008- 95 States partiesContentsFar-reaching positive obligations for States to ensure non-discrimination,the full and effective participation and inclusion, the respect for differenceand acceptance of persons with disabilities as part of human diversity andhumanity, the equality of opportunity and accessibilityMonitoring• Committee on Enforced Disappearances: 12 experts• State reporting procedure - mandatory (art. 35)• Individual or group complaints procedure - Optional Protocol (58ratifications)• Inquiry procedure (art. 6 OP), national mechanism (art. 33)


International Convention for the Protection of All Personsfrom Enforced Disappearance (CED)- GA Res. 61/177 of 20 December 2006- not yet in force: requires 20 ratifications, to date 19ContentsProvision on the prohibition and prevention of enforced dissapearances,including the explicit provision of secret detention and several rights forvictims (any person suffering harm as a direct result of thedisappearance) 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)• Slavery Convention (1926/27)• Protocol amending the 1926 Slavery Convention (1953/53)• Supplementary Convention on the Abolition of Slavery, the Slave Trade, andInstitutions 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 ofMarriages (1962/64)• International Convention on the Suppression and Punishment of the Crime ofApartheid (1973/76)• International Convention on the Protection of the Rights of All Migrant Workers andMembers of Their Families (1990/2003)


Individual Complaints Before UN TreatyMonitoring Bodies(1976 – 2010)Treaty number of cases registered number of casesdecided on the meritsCCPR 1.964 731CAT 421 164CERD 45 24CEDAW 14 5


Individual Complaints Procedure1 st OP to the CCPRCommunication from individual who claims to be the victim of a violation of CCPR(‘Author’)Human Rights CommitteeAdmissibilityProcedureRequirements:- Competence of Committee recognized by states parties to theProtocol (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 anotherinternational procedure (article 5(2)(a) OP)- Substantiation of allegations (prima facie case) (article 2 OP)


Individual Complaints Procedure1 st OP to the CCPRAdmissibilityProcedureAdmissibilityDecisionInadmissibilityDecisionProceedings on the meritsExamination and deliberation(confidential)ViolationFollow UpDecision on theMerits (‘Final Views’)No Violation


International Monitoring SystemProblems:• Accessibility• Many treaties, many Committees: Which way to choose?• Duplication and ineffectiveness• Visibility• Bindingness, enforcement and follow-upSolutions:• National monitoring mechanisms (see OPCAT, CRPD): Strongerrole of NHRIs and NGOs in the follow-up• World Court of Human Rights


Links and LiteratureLinks:• Human Rights Theme Maps - www.rwi.lu.se/tm/ThemeMaps.html• Atlas of Torture - www.atlas-of-torture.orgAdditional readings:• Alfredsson/Grimheden/Ramcharan/Zayas, International HumanRights Monitoring Mechanisms, Leiden 2009• Nowak, UN Covenant on Civil and Political Rights, CCPRCommentary, Kehl 2005• Eide/Krause/Rosas, Economic, Social and Cultural Rights,Dordrecht 2001

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