1. 3. Human Rights Treaties and Monitoring Mechanisms
Ludwig Boltzmann Institut für Menschenrechte
Ludwig Boltzmann Institute of Human Rights
3. Human Rights Treaties and Monitoring Mechanisms
Julia Kozma and Moritz Birk
University of Vienna Ludwig Boltzmann Institute of Human Rights, Vienna

2. Overview The Universal Declaration of Human Rights (UDHR)
The core human rights treaties and their status of ratification
Treaty bodies and monitoring mechanisms
Overview of the individual human rights treaties – content and monitoring
Functioning of the individual complaint procedure – by the example of the ICCPR
International treaty monitoring system – problems and possible solutions

3. Universal Declaration of Human Rights (UDHR)
GA Res. 217 A (III), 10 December 1948
Most fundamental international human rights document presupposing human rights as the “foundation of freedom, justice and peace in the world” (Preamble)
Not binding (“a common standard of achievement”), but parts constitute customary international law
Authoritative interpretation of the term ‘human rights’ in the UN Charter
Incorporated in many national constitutions and referred to in many international human rights treaties
 Includes civil, political, economic, social and cultural rights and a reference to ‘third generation rights’ (art. 28)

4. 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 Degrading
Treatment or Punishment (CAT, 1987)
Convention on the Protection of the Rights of All Migrant Workers and
Members 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)
The Core Human Rights Treaties

6. Treaty Bodies
Each treaty is monitored by a Committee composed of independent experts (between 10-25), elected by the State parties (exception ComESCR – elected by ECOSOC)
The CCPR and CRC Committees meet three times a year, the CMW Committee once and the other treaty bodies twice
Serviced by the OHCHR in Geneva
Issue non-binding General Comments/Recommendations
Monitoring mechanisms:
State Reporting procedure – obligatory
Individual Complaints procedure (all but CRC) - optional
Inquiry Procedure (CAT, CEDAW) – opt out possibility
Fact-finding visits (SPT, CED Committee)
National monitoring (OPCAT, CRPD)

7. 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 of NGOs)
Concluding observations (country-specific) and general comments (published in the annual report)
Follow-up (important role of NGOs)

8. Individual Complaints Procedure
Optional (Protocols, Declarations)
Quasi-judicial bodies: proactive, decisions of high quality but not legally binding (“views”/”observations”)
No enforcement or political follow-up
Accessibility: Recognition by State of origin, only written submissions; admissibility
Relatively few cases

10. 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-founded indications of the systematic violations (information frequently provided by NGOs)
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

11. 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 right of self-determination (article 1), right to equality and non-discrimination (article 26), rights of persons belonging to minorities (article 27) and prohibition of propaganda for war and incitement to discrimination, hostility or violence (article 20).
 Second Optional Protocol, aiming at the abolition of the death penalty (GA Res. 44/128 of 15 December 1989, entry into force on 11 July 1991; 72 states parties)

12. International Covenant on Civil and Political Rights (CCPR)
Monitoring
 Human Rights Committee: 18 experts
 State reporting procedure – mandatory (article 40): country-specific recommendations
 General comments: essential interpretative views, 33 to date
 Inter-state communication procedure (article 41); no cases to date
 Individual communication procedure under the 1st Optional Protocol to the CCPR (1966/76, 113 states parties): similar to the procedure before the European Court of Human Rights, total cases 1964, 402 cases pending, 557 inadmissible and 274 discontinued cases; 731 views, 589 violations found (as of 08/2010)

13. International Covenant on Economic, 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 international assistance and co-operation
- To the maximum of its available resources
- With a view to achieving progressively the full realization of the rights 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

14. International Covenant on Economic, Social and Cultural Rights (CESCR)
Monitoring
Committee on Economic, Social and Cultural Rights (not provided in the treaty, established by ECOSOC, Res.1985/17): 18 experts
State reporting procedure – mandatory (articles 16, 17): country-specific recommendations
General comments: essential interpretative views, 21 to date (08/2010)
 Individual communication procedure, Optional Protocol, adopted 10 December 2008, in force with tenth ratification (presently three accessions)

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

16. International Convention on the Elimination
of 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 of specified rights – article 5
To assure to everyone within their jurisdiction effective protection and remedies against any acts of racial discrimination – article 6
Monitoring
 Committee on the Elimination of Racial Discrimination: 18 experts
 State reporting procedure – mandatory (article 9): country-specific recommendations
 General Recommendations: essential interpretative views, 33 to date
 Inter-state communication procedure: mandatory (article 11); not effective, no cases to date
 Individual communication procedure: optional (following state declaration, article 14). In place since 1982, 54 declarations, 45 cases in total, 4 cases pending, 24 views, 10 violations (07/2010). States may establish a special national body to receive and examine complaints.

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

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

19. Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT)
GA Res. 39/46 of 10 December 1984
Entry into force: 26 June 1987
147 states parties
Contents
 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 criminal law (article 4)
- Universal jurisdiction (articles 5 to 8): principle ‘aut dedere aut judicare’

20. Convention against Torture and Other Cruel, Inhuman or
Degrading 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 )
 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 of detention (International Subcommittee and National Preventive Mechanisms), 57 State parties

21. 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 cultural rights 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 in all actions concerning children (article 3)
- Prohibition of discrimination (article 2)
- Right to life and development of the child to the maximum extent (article 6)
- Right to participation (article 12)

22. Convention on the Rights of the Child (CRC)
 Optional Protocol on the involvement of children in armed conflicts: GA Res. 54/263 of 25 May 2000; entry into force 12 February 2002; 139 States parties
Optional Protocol on the sale of children, child prostitution and child pornography: GA Res. 54/263 of 25 May 2000; entry into force 18 January 2002; 141 states parties
Monitoring
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

23. Convention on the Protection of the Rights of All Migrant
Workers 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)
Contents
Provides for a comprehensive list of civil, political, economic, social and cultural rights of migrant workers and their families
Monitoring
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 have
submitted declarations (to date only Guatemala and Mexico)

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

25. International Convention for the Protection of All Persons
from Enforced Disappearance (CED)
GA Res. 61/177 of 20 December 2006
not yet in force: requires 20 ratifications, to date 19
Contents
Provision on the prohibition and prevention of enforced dissapearances, including the explicit provision of secret detention and several rights for victims (any person suffering harm as a direct result of the disappearance) 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)

26. 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, and Institutions 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 of Marriages (1962/64)
International Convention on the Suppression and Punishment of the Crime of Apartheid (1973/76)
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990/2003)

27. Individual Complaints Before UN Treaty Monitoring Bodies
(1976 – 2010)
Treaty number of cases registered number of cases decided on the merits
CCPR
CAT
CERD
CEDAW

28. Individual Complaints Procedure 1st OP to the CCPR
Communication from individual who claims to be the victim of a violation of CCPR (‘Author’)
Human Rights Committee
Admissibility Procedure
Requirements:
- Competence of Committee recognized by states parties to the Protocol (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 another international procedure (article 5(2)(a) OP)
- Substantiation of allegations (prima facie case) (article 2 OP)

29. Individual Complaints Procedure 1st OP to the CCPR
Admissibility Procedure
Inadmissibility Decision
Admissibility Decision
Proceedings on the merits
Examination and deliberation
(confidential)
Decision on the Merits (‘Final Views’)
Violation
No Violation
Follow Up

30. International Monitoring System
Problems:
Accessibility
Many treaties, many Committees: Which way to choose?
Duplication and ineffectiveness
Visibility
Bindingness, enforcement and follow-up
Solutions:
National monitoring mechanisms (see OPCAT, CRPD): Stronger role of NHRIs and NGOs in the follow-up
World Court of Human Rights

31. Links and Literature Additional readings:
Human Rights Theme Maps -
Atlas of Torture -
Additional readings:
Alfredsson/Grimheden/Ramcharan/Zayas, International Human Rights Monitoring Mechanisms, Leiden 2009
Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary, Kehl 2005
Eide/Krause/Rosas, Economic, Social and Cultural Rights, Dordrecht 2001