1. TOPIC 4: UN Treaty Based System of Human Rights Protection International Human Rights Law (LG523)

2. Lecture Outline 1. UN Treaty Based system of Human Rights Protection 2. UN HR Treaty based bodies

3. Human Rights Protection Charter-based Non-conventional Applicable to all member states of the UN Treaty Based Conventional Applicable to State Parties Drafted by UN

4. UN Human Rights Treaties 9 major HR treaties  International Covenant on Civil and Political Rights  International Covenant on Economic, Social and Cultural Rights  International Convention on the Elimination of All Forms of Racial Discrimination  Convention on the Elimination of Discrimination Against Women  Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment  Convention on the Rights of the Child  International Convention on Protection of the Rights of All Migrant Workers and Members of Their Families  International Convention on the Rights of Persons with Disabilities  International Convention for the Protection of All Persons from Enforced Disappearance Also other smaller treaties dealing with HR issues - http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en

5. Terms of the Treaties Each treaty has different terms – have to be read carefully for meaning Also need to check signature and ratification for all parts to the treaty Should also check for reservations

6. ICCPR http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_n o=IV-4&chapter=4&lang=en http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_n o=IV-4&chapter=4&lang=en Common Article 1:  Article 1  1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.  2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.  3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

7. ICCPR – Non-discrimination Article 2 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.

8. ICESCR http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_n o=IV-3&chapter=4&lang=en http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_n o=IV-3&chapter=4&lang=en Common Article 1:  Article 1  1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.  2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.  3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

9. ICESCR Article 2  Article 2  1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.  2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.  3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.

10. Treaty Bodies Each of the major conventions has their own treaty body  ICCPR – Human Rights Committee  ICESCR – Committee on Economic, Social and Cultural Rights  CAT – Committee Against torture  CERD – Committee on the Elimination of Racial Discrimination  CEDAW – Committee on the Elimination of Discrimination Against Women  CRC- Committee on the Rights of the Child  UNCRMW – Migrant Workers Committee

11. Treaty Bodies All Treaty bodies have various functions There are some common functions  Reports  Investigations  Inter-State Complaints  Individual Complaints  Recommendations / General Comments

12. Human Rights Committee Article 28 ICCPR:  1. There shall be established a Human Rights Committee (hereafter referred to in the present Covenant as the Committee). It shall consist of eighteen members and shall carry out the functions hereinafter provided.

13. Role of HRC Reports: All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee examines each report and addresses its concerns and recommendations to the State party in the form of "concluding observations”. Inter-state complaints: In addition to the reporting procedure, article 41 of the Covenant provides for the Committee to consider inter-state complaints. Individual Complaints: Furthermore, the First Optional Protocol to the Covenant gives the Committee competence to examine individual complaints with regard to alleged violations of the Covenant by States parties to the Protocol. The full competence of the Committee extends to the Second Optional Protocol to the Covenant on the abolition of the death penalty with regard to States who have accepted the Protocol. General Comments: The Committee also publishes its interpretation of the content of human rights provisions, known as general comments on thematic issues or its methods of work.

14. Role of the CESCR The Committee was established under ECOSOC Resolution 1985/17 of 28 May 1985 to carry out the monitoring functions assigned to the United Nations Economic and Social Council (ECOSOC) in Part IV of the Covenant. Reports: All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially within two years of accepting the Covenant and thereafter every five years. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations”. Individual Complaints: With regard to individual complaints, on 10 December 2008, the General Assembly unanimously adopted an Optional Protocol (GA resolution A/RES/63/117) to the International Covenant on Economic, Social and Cultural Rights which provides the Committee competence to receive and consider communications. The Optional Protocol was opened for signature at a signing ceremony in 2009. In addition to the Committee on Economic, Social and Cultural rights, other committees with competence can consider individual communications involving issues related to economic, social and cultural rights in the context of its treaty. The Committee meets in Geneva and normally holds two sessions per year, consisting of a three-week plenary and a one-week pre-sessional working group. General Comments: The Committee also publishes its interpretation of the provisions of the Covenant, known as general comments..

15. Role of the CERD The Committee on the Elimination of Racial Discrimination (CERD) is the body of independent experts that monitors implementation of the Convention on the Elimination of All Forms of Racial Discrimination by its State parties. Reports: All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially one year after acceding to the Convention and then every two years. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations”. Early-warning procedure Inter-state complaints Individual complaints. The Committee meets in Geneva and normally holds two sessions per year consisting of three weeks each. The Committee also publishes its interpretation of the content of human rights provisions, known as general recommendations (or general comments), on thematic issues and organizes thematic discussions.

16. Role of CEDAW The Committee on the Elimination of Discrimination against Women (CEDAW) is the body of independent experts that monitors implementation of the Convention on the Elimination of All Forms of Discrimination against Women. CEDAW Committee consists of 23 experts on women’s rights from around the world. Reports: Countries who have become party to the treaty (States parties) are obliged to submit regular reports to the Committee on how the rights of the Convention are implemented. During its sessions the Committee considers each State party report and addresses its concerns and recommendations to the State party in the form of concluding observations. Individual Complaints: receive communications from individuals or groups of individuals submitting claims of violations of rights protected under the Convention to the Committee Initiate inquiries into situations of grave or systematic violations of women’s rights. General Recommendations: The Committee also formulates general recommendations and suggestions. General recommendations are directed to States and concern articles or themes in the Conventions.

17. Role of CAT The Committee Against Torture (CAT) is the body of 10 independent experts that monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by its State parties. Reports: All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially one year after acceding to the Convention and then every four years. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of "concluding observations". Individual complaints or communications from individuals claiming that their rights under the Convention have been violated Undertake inquiries Consider inter-state complaints The Optional Protocol to the Convention, which entered into force in June 2006, creates the Subcommittee on Prevention of Torture (SPT). The SPT has a mandate to visit places where persons are deprived of their liberty in the States parties. Under the Optional Protocol, States parties shall establish a independent national preventive mechanisms for the prevention of torture at the domestic level which has also a mandate to inspect places of detention. The CAT meets in Geneva and normally holds two sessions per year consisting of a three week session in April/May and another three week session in November. The Committee also publishes its interpretation of the content of the provisions of the Convention, known as general comments on thematic issues

18. Role of the CRC Monitoring children's rights The Committee on the Rights of the Child (CRC) is the body of independent experts that monitors implementation of the Convention on the Rights of the Child by its State parties. It also monitors implementation of two optional protocols to the Convention, on involvement of children in armed conflict and on sale of children, child prostitution and child pornography. Reports: All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially two years after acceding to the Convention and then every five years. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations”. The Committee reviews additional reports which must be submitted by States who have acceded to the two Optional Protocols to the Convention. The Committee cannot consider individual complaints, although child rights may be raised before other committees with competence to consider individual complaints. The Committee meets in Geneva and normally holds three sessions per year consisting of a three-week plenary and a one-week pre-sessional working group. In 2010, the Committee considered reports in two parallel chambers of 9 members each, "as an exceptional and temporary measure", in order to clear the backlog of reports. The Committee also publishes its interpretation of the content of human rights provisions, known as general comments on thematic issues and organizes days of general discussion. For more information about the work of the Committee on the Rights of the Child, click here.here

19. Role of the CMW The Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW) is the body of independent experts that monitors implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families by its State parties. It held its first session in March 2004. Reports: All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially one year after acceding to the Convention and then every five years. The Committee will examine each report and address its concerns and recommendations to the State party in the form of “concluding observations”. Individual Complaints: The Committee will also, under certain circumstances, be able to consider individual complaints or communications from individuals claiming that their rights under the Convention have been violated once 10 States parties have accepted this procedure in accordance with article 77 of the Convention. At the moment, two States have accepted this procedure. The Committee meets in Geneva and normally holds two sessions per year. The Committee also organizes days of general discussion and can publish statements on themes related to its work and interpretations of the content of the provisions in the Convention (general comments).

20. Role of the CRPD The Committee on the Rights of Persons with Disabilities (CRPD) is the body of independent experts which monitors implementation of the Convention by the States Parties. Reports: All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially within two years of accepting the Convention and thereafter every four years. The Committee examines each report and shall make such suggestions and general recommendations on the report as it may consider appropriate and shall forward these to the State Party concerned. Individual Complaints: The Optional Protocol to the Convention gives the Committee competence to examine individual complaints with regard to alleged violations of the Convention by States parties to the Protocol. The Committee shall meet in Geneva and normally hold two sessions per year.

21. Role of the CED The Committee on Enforced Disappearances (CED) is the body of independent experts which monitors implementation of the Convention by the States Parties. Reports: All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially within two years of accepting the Convention. The Committee examines each report and shall make such suggestions and general recommendations on the report as it may consider appropriate and shall forward these to the State Party concerned. In accordance with article 31, a State Party may at the time of ratification of this Convention or at any time afterwards declare that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction claiming to be victims of a violation by this State Party of provisions of this Convention. The Committee shall meet in Geneva and normally hold two sessions per year.

22. General Comments Most of the treaty bodies have the right to issue general comments eg. CESCR Right to water: http://daccess-dds- ny.un.org/doc/UNDOC/GEN/G03/402/29/PDF/G0340229.pdf?OpenElementhttp://daccess-dds- ny.un.org/doc/UNDOC/GEN/G03/402/29/PDF/G0340229.pdf?OpenElement  (a) Availability. The water supply for each person must be sufficient and continuous for personal and domestic uses. These uses ordinarily include drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene.  (b) Quality. The water required for each personal or domestic use must be safe, therefore free from micro- organisms, chemical substances and radiological hazards that constitute a threat to a person’s health.15 Furthermore, water should be of an acceptable colour, odour and taste for each personal or domestic use.  (c) Accessibility. Water and water facilities and services have to be accessible to everyone without discrimination, within the jurisdiction of the State party. Accessibility has four overlapping dimensions:  (i) Physical accessibility: water, and adequate water facilities and services, must be within safe physical reach for all sections of the population. Sufficient, safe and acceptable water must be accessible within, or in the immediate vicinity, of each household, educational institution and workplace.16 All water facilities and services must be of sufficient quality, culturally appropriate and sensitive to gender, lifecycle and privacy requirements. Physical security should not be threatened during access to water facilities and services;  (ii) Economic accessibility: Water, and water facilities and services must be affordable for all. The direct and indirect costs and charges associated with securing water must be affordable, and must not compromise or threaten the realization of other Covenant rights;  (iii) Non-discrimination: Water and water facilities and services must be accessible to all, including the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds; and  (iv) Information accessibility: accessibility includes the right to seek, receive and impart information concerning water issues.

23. Reports All treaty bodies require State Parties to report and the Committee will then issue concluding observations See for example Concluding Observations of the CRC in 2006 on Saudi Arabia:  2. Definition of the child (art. 1 of the Convention)  25. The Committee takes note of the information that the age of majority is 18 in the State party but is concerned about the information given during the dialogue that a judge has the discretionary power to decide that a child has reached majority at an earlier age. 26. The Committee recommends that the State party take the necessary legislative and other measures to unequivocally set the age of majority at 18 with no exception for specific cases, including within the juvenile justice system. The Committee further recommends that the State party clearly set by law the minimum age for marriage at the same internationally acceptable level for boys and girls.  3. General principles (arts. 2, 3, 6 and 12 of the Convention)  Non-discrimination 27. The Committee shares the concerns expressed by the Committee on the Elimination of Racial Discrimination in its concluding observations on Saudi Arabia adopted in March 2003 (CERD/C/62/CO/8) that the mere statement of the general principle of non-discrimination in domestic law is not a sufficient response to the requirements of the Convention. De jure and de facto discrimination against girls and de facto discrimination against children born out of wedlock are issues of particular concern to the Committee as well as disparities in the enjoyment of economic and social rights experienced by non-nationals’ children and other vulnerable groups, such as children belonging to religious minorities. 28. The Committee recommends that the State party review relevant domestic laws and administrative regulations in order to ensure full respect for the equality between girls and boys in the enjoyment of all rights in the Convention, and in order to ensure that children born out of wedlock, children of non-Saudi nationals (migrants) and children begging on the streets are not discriminated against. The Committee encourages the State party to further strengthen its proactive and comprehensive efforts to eliminate de facto discrimination on any grounds and against all vulnerable groups of children, including through public education campaigns to prevent discrimination and combat negative attitudes in society. The State party should pursue such efforts in close cooperation with community and religious leaders with a view to promoting change in persisting patriarchal sociocultural traditions and attitudes, especially towards girls in particular.  29. The Committee requests that specific information be included in the next periodic report on the measures and programmes relevant to the Convention undertaken by the State party to follow up on the Durban Declaration and Programme of Action adopted at the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, and taking into account the Committee’s general comment No. 1 on article 29, paragraph 1, of the Convention (aims of education).

24. Early Warning Procedure CERD:  The Committee includes in its regular agenda preventive measures which include early-warning aimed at preventing existing situations escalating into conflicts and urgent procedures to respond to problems requiring immediate attention to prevent or limit the scale or number of serious violations of the Convention.  http://www2.ohchr.org/english/bodies/cerd/early- warning.htm http://www2.ohchr.org/english/bodies/cerd/early- warning.htm  Letter to Australia – 2010 - http://www2.ohchr.org/english/bodies/cerd/docs/early_warn ing/Australia31052010.pdf http://www2.ohchr.org/english/bodies/cerd/docs/early_warn ing/Australia31052010.pdf

25. Inquiries CEDAW: Inquiry Function The Committee completed its first inquiry under article 8 of the Optional Protocol in July 2004. CEDAW/C/2005/OP.8/MEXICO Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention, and reply from the Government of Mexico. http://www.un.org/womenwatch/daw/cedaw/cedaw 32/CEDAW-C-2005-OP.8-MEXICO-E.pdf http://www.un.org/womenwatch/daw/cedaw/cedaw 32/CEDAW-C-2005-OP.8-MEXICO-E.pdf

26. Days of General Discussion CRC  http://www2.ohchr.org/english/bodies/crc/discussion.htm http://www2.ohchr.org/english/bodies/crc/discussion.htm  The right of the child to education in emergency situations2008 The right of the child to education in emergency situations  Resources for the Rights of the Child - Responsibility of States2007 Resources for the Rights of the Child - Responsibility of States  The right of the child to be heard2006 The right of the child to be heard  Childen without parental care2005 Childen without parental care  Implementing child rights in early childhood2004 Implementing child rights in early childhood  SR.979The rights of indigenous children2003 SR.979The rights of indigenous children  The private sector as a service provider2002 The private sector as a service provider  Violence against children within the family and in school2001 Violence against children within the family and in school  State violence against children2000 State violence against children  10th Anniversary: General measures of implementation1999 10th Anniversary: General measures of implementation  HIV/AIDS1998 HIV/AIDS  Children with disabilities1997 Children with disabilities  The child and the media1996 The child and the media  Juvenile justice1995 Juvenile justice  The girl child1995 The girl child  Role of the family1994 Role of the family  Economic exploitation1993 Economic exploitation  Children in armed conflict1992Children in armed conflict

27. Inter-state Complaints Several of the human rights treaties contain provisions to allow for State parties to complain to the relevant treaty body about alleged violations of the treaty by another State party. Note: these procedures have never been used. CAT and CMW: Article 21 CAT and article 74 CMW set out a procedure for the relevant Committee itself to consider complaints from one State party which considers that another State party is not giving effect to the provisions of the Convention. This procedure applies only to States parties who have made a declaration accepting the competence of the Committee in this regard. CERD and CCPR: Articles 11-13 ICERD and articles 41-43 ICCPR set out a more elaborate procedure for the resolution of disputes between States parties over a State's fullfillment of its obligations under the relevant Convention/Covenant through the establishment of an ad hoc Conciliation Commission. The procedure normally applies to all States parties to ICERD, but applies only to States parties to the ICCPR which have made a declaration accepting the competence of the Committee in this regard. Resolution of inter-State disputes concerning interpretation or application of a convention CEDAW, CAT and CMW: Article 29 CEDAW, article 30 CAT and article 92 provide for disputes between States parties concerning interpretation or application of the Convention to be resolved in the first instance by negotiation or, failing that, by arbitration. One of the States involved may refer the dispute to the International Court of Justice if the parties fail to agree arbitration terms within six months. States parties may exclude themselves from this procecedure by making a declaration at the time of ratification or accession, in which case, in accordance with the principle of reciprocity, they are barred from bringing cases against other States parties.

28. Individual Complaints Five of the human rights treaty bodies (CCPR, CERD, CAT, CEDAW and CRPD) may, under particular circumstances, consider individual complaints or communications from individuals: The Human Rights Committee may consider individual communications relating to States parties to the First Optional Protocol to the International Covenant on Civil and Political Rights; The CEDAW may consider individual communications relating to States parties to the Optional Protocol to the Convention on the Elimination of Discrimination Against Women; The CAT may consider individual communications relating to States parties who have made the necessary declaration under article 22 of the Convention Against Torture; The CERD may consider individual communications relating to States parties who have made the necessary declaration under article 14 of the Convention on the Elimination of Racial Discrimination; and The CRPD may consider individual communications relating to States parties to the Optional Protocol to the Convention on the Rights of Persons with Disabilities. The Convention on Migrant Workers also contains provision for allowing individual communications to be considered by the CMW; these provisions will become operative when 10 states parties have made the necessary declaration under article 77.

29. Who can complain? Any individual who claims that her or his rights have under the covenant or convention have been violated by a State party to that treaty may bring a communication before the relevant committee, provided that the State has recognized the competence of the committee to receive such complaints. Complaints may also be brought by third parties on behalf of individuals provided they have given their written consent or where they are incapable of giving such consent.

30. Exhaustion of Domestic Remedies Can normally only be considered where there is an exhaustion of domestic remedies

31. The Procedure Case entered At that point, the case is 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 your 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 your rights under a treaty have been violated. Once the State replies to your submission, you are offered an opportunity to comment. Again, the time frames vary somewhat between procedures (see below for details). At that point, the case is ready for a decision by the relevant committee. If the State party fails to respond to your complaint, you are not disadvantaged. Reminders are sent to the State party and if there is still no response, the committee takes a decision on your case on the basis of your original complaint.

32. Urgent Cases Each committee has the facility to take urgent action where irreparable harm would otherwise be suffered before the case is examined in the usual course The common feature is that the committee in question may, at any stage before the case is considered, issue a request to the State party for what are known as "interim measures" in order to prevent any irreparable harm. Typically, such requests are issued to prevent actions that cannot later be undone, for example the execution of a death sentence or the deportation of an individual facing a risk of torture.

33. Consideration of the Complaint The committees consider each case in closed session. Although some have provisions for oral components of proceedings in their rules of procedure, the practice has been to consider complaints on the basis of the written information supplied by the complainant and the State party. Accordingly, it has not been the practice to receive oral submissions from the parties or audio or audio-visual evidence (such as audio cassettes or videotapes). Nor do the committees go beyond the information provided by the parties to seek independent verification of the facts. It follows that they do not consider briefs provided by third parties (often called amicus briefs). Once the committee takes a decision on your case, it is transmitted to you and the State party simultaneously.

34. What happens once a decision is made? It should be noted at the outset that there is no appeal against committee decisions and that, as a rule, the decisions are final. When the committee decides that you have been the victim of a violation by the State party of your rights under the treaty, it invites the State party to supply information within three months on the steps it has taken to give effect to its findings. When the committee decides that there has been no violation of the treaty in your case or that your complaint is inadmissible, the process is complete once the decision has been transmitted to you and the State party..

35. Examples – Torture CAT decisions

36. Saadia Ali v. Tunisia (2006) Complaint relating to torture.