The Treaty-Based Regime of International Human Rights Law

Dr. Joshua Castellino, Irish Centre for Human Rights,
NUI Galway, Republic of Ireland
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    Introduction
  1. The International Covenant for Civil & Political Rights, 1966
  2. The International Covenant for Economic, Social & Cultural Rights,1966
  3. The International Convention for the Elimination of All Forms of Racial Discrimination,1969
  4. The International Convention for the Elimination of All Forms of Discrimination Against Women, 1981
  5. The International Convention on the Rights of the Child, 1990
  6. The International Convention against Torture, 1984
  7. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1 July 2003
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Introduction

The International Human Rights Regime is often usefully described as consisting of two specific elements: Charter Based Institutions and Treaty Based Institutions. While Charter Based Institutions such as the Commission on Human Rights and the Sub-Commission for the Protection and Promotion of Human Rights derive their mandates directly from the UN Charter of 1945, Treaty Based Regimes are set up by specific treaties negotiated signed and ratified by state parties. This paper seeks to focus on these treaty-based mechanisms, highlighting their object and purpose, the procedures available under them and a general comment on their direction. The overall purpose of this exercise is to be able to provide lawyers within domestic realms access to the work of these international quasi-legal bodies both with a view to encouraging individual complaints (where provided for in the treaties, and where appropriate based on recognition by states of such a procedure) but also to provide a lens with which to view international pronouncements by states before Committees of Experts constituted with the purpose of monitoring implementation of state obligations.
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1. International Covenant for Civil & Political Rights, 1966

Entry into Force: 23 March 1976, in accordance with article 49, for all provisions except those of article 41; 28 March 1979 for the provisions of article 41 (Human Rights Committee), in accordance with paragraph 2 of the said article 41. REGISTRATION: 23 March 1976, No. 14668. TEXT: United Nations, Treaty Series, vol. 999, p. 171 and vol. 1057, p. 407 (procès-verbal of rectification of the authentic Spanish text). STATUS: Signatories: 60. Parties: 144 [1]

Protocols: Optional Protocol to the International Covenant on Civil and Political Rights (individual complaints mechanism); Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty

General Scope: This treaty contains the codification into legal principles of aspirations expressed in the Universal Declaration of Human Rights of 1948. The attempt to create a single document of human rights splintered along ideological lines, and as a result two separate documents were created, this one focussing on civil & political rights. This document is often considered as the basis for the human rights regime and most of the articles contained in the document have subsequently been the focus of independent legal precepts.

Rights Package: The treaty contains a host of rights expressed in Part III of the Convention from article 6 (right to life) to 27 (rights of minorities). The travaux préparatoires to the Covenant is a good starting point for the determination of the discussions pursued in the framing of each of these principles. [2]

Monitoring System: The Human Rights Committee (HRC) a body consisting of 18 experts of high standing, monitor states obligations under this treaty. [3] The Experts, sit on the Committee in their independent individual capacities and oversee its overall implementation. This mandate involves being able to receive and comment upon state parties reports, being able to receive individual complaints made under the Optional Protocol and being able to pass General Observations & Recommendations [4] on any aspect concerning civil and political rights.

Reporting System:
State Reporting [5]
Inter-state Complaints Mechanism (declaration under article 41) [6]
Individual Complaints Mechanism (Optional Protocol I)

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2. International Covenant for Economic, Social & Cultural Rights, 1966

Entry into Force: 3 January 1976, in accordance with article 27.1 REGISTRATION: 3 January 1976, No. 14531. TEXT: United Nations, Treaty Series, vol. 993, p. 3. STATUS: Signatories: 61. Parties: 142 [7]

General Scope: This document represents the other treaty that completed the codification of the aspirations contained within the Universal Declaration of Human Rights. It forms the sister document to the ICCPR, focussing on economic, social and cultural rights. It contains identical article 1 as in the ICCPR, namely the right to self-determination, since it is believed that without this particular right all other rights would be rendered meaningless. Nonetheless the Committee that monitors the Covenant, the CESCR [8] like the HRC has been unwilling to entertain the right to self-determination.

Rights Package: The rights contained in this Covenant are elaborated in articles 5-15. These include the rights of workers [9], the right to education [10], and the right to standards of living [11].Cultural rights gets scarce mention within the document, an indicator of the politicised nature of its framing [12]. The rights package also reveals the extent to which the subject of the Covenant is covered by other international bodies such as the International Labour Organisation [13]. In addition many argue that economic, social and cultural rights today need to take into account a variety of group rights that have increasing pertinence, such as the right to the environment and the right to development.

Monitoring System: The Covenant is monitored by the Committee on Economic, Social and Cultural Rights (CESCR). Unlike other human rights treaty bodies, the CESCR was not established by its corresponding instrument. Rather, it was created in 1985 by the Economic and Social Council (ECOSOC) after the less than ideal performance of two previous bodies entrusted with monitoring the Covenant.

Reporting System:
State Reporting

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3. International Convention for the Elimination of all Forms of Racial Discrimination 1965

Entry into Force: 4 January 1969, in accordance with article 19.1 REGISTRATION: 12 March 1969, No. 9464. TEXT: United Nations, Treaty Series, vol. 660, p. 195. STATUS: Signatories: 77. Parties: 155.

General Scope: This Convention was framed in direct response to the increased violence and hate propaganda appearing in Europe towards the Jews in the 1960s. However a significant contributor to its early success was the pressure brought to bear upon it by newly independent states who sought to reiterate their distaste of the apartheid regime in Johannesburg, South Africa, in the strongest terms. The scope of the Convention has been questioned; since ‘race’ as a term is contested, but the attitude taken is that racial discrimination is very real and needs to be combated. The Committee has also sought to broaden the mandate of the Convention in recent years to extend to gender based discrimination.

Rights Package: The rights package of this Convention are contained in article 5, which lists the rights that states have promised to ensure are provided without discrimination. The Committee has stressed that this list is not exhaustive. The Convention also provides for two specific tools to combat racism namely the process of affirmative action as contained in article 1(4) and the passage of legislation outlawing hate speech as contained in article 4.

Monitoring System: The Convention is monitored by the Committee for the Elimination of Racial Discrimination (CERD). This body of 18 experts, chosen on the basis of their individual standing have a mandate similar to the Human Rights Committee. Being the oldest committee it has considered the largest number of state reports compared to any other treaty based committee and its recommendations on issues of law and interpretation are particularly useful. The mandate of the Committee to receive individual petitions has been extended by the increase in states that have made the express provision required for this under article 14.

Reporting System:
State Reporting
Inter-state complaint mechanism
Individual Reporting System (Special Declaration under a/14)

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4. International Convention for the Elimination of All Forms of Discrimination Against Women, 1981

Entry into Force: 3 September 1981, in accordance with article 27 (1). REGISTRATION: 3 September 1981, No. 20378. TEXT: United Nations, Treaty Series, vol. 1249, p. 13. STATUS: Signatories: 97. Parties: 165.

Protocols: Optional Protocol to the Convention on the Elimination of Discrimination Against Women, 2000 (Individual Petition Mechanism)

General Scope: This is perhaps one of the most controversial of human rights documents. It was the result of states’ recognition that women’s rights were being violated globally and that there was need to codify them separately under a specific convention. However since the framing of the Convention there has been little political will to enhance provisions and facilitate work under the Convention. Thus while an Optional Protocol has recently been passed that sees the right of individual petition, much work has also taken place outside the direct mandate of the Committee e.g. World Population Conference Cairo, 1992; Women’s Conference, Beijing 1995. Much of the problem with the Convention lies in the number and type of reservations entered by state parties which seriously restrict and compromise the scope of the treaty and the mandate of the Committee.

Rights Package: The package of rights sought to be guaranteed to women under this convention varies from rights that are guaranteed to all and that therefore accrue to women through the principle of non-discrimination; to rights that are specific to women’s special needs. The rights entitlements are expressed in Part III articles 10-14 and Part IV articles 15-16 of the Convention. One issue of special note is the elaboration of article 2 that requires states to outlaw any practice that endangers the right of women to enjoy rights and freedoms without discrimination. There have been a high proportion of reservations to this particular article arguing that this needs to be subject to cultural and religious norms.

Monitoring System: The Committee for the Elimination of Discrimination Against Women (CEDAW) oversees the implementation of this Convention. It is composed of 23 experts sitting in their individual capacity. However the lack of funds has seriously hampered the work of the Committee, as has the disconnection of the Committees work (based in Vienna the seat of the Division of Advancement of Women) from the other treaty monitoring bodies in Geneva.

Reporting System:
State Reporting
Individual Reporting (under Optional Protocol of 2000)

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5. International Convention on the Rights of the Child 1989

ENTRY INTO FORCE: 2 September 1990, in accordance with article 49 (1). REGISTRATION: 2 September 1990, No. 27531. TEXT: United Nations, Treaty Series, vol. 1577, p. 3; depositary notifications C.N.147.1993.TREATIES-5 of 15 May 1993 [amendments to article 43 (2)]1; and C.N.322.1995.TREATIES7 of 7 November 1995 [amendment to article 43 (2)]. STATUS: Signatories: 140. Parties: 191

Protocols: Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts [entered into force February 12th 2002]; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography [not yet in force]

General Scope: This is one of the most inclusive of the treaties under the treaty monitoring system. It is a unique document for the extent to which it reflects international consensus for the protection of the rights of the child. Its near universal ratification has meant that only Somalia and the United States of America remain outside the scope of this regime. The Convention has been further supplemented by the passage of optional protocols on child soldiers and on the sale of children and pornography both of which have attracted considerable interest from state parties. In terms of scope the Convention applies to all human beings under the age of 18.

Rights Package: The rights package for this convention can be described as involving protection, provision, and participation of children. These rights are expressed in Part I articles 2-41 of the Convention. While the aspects of protection of children and provision for children has universal acceptance, states’ methods and resources differ in the manner in which they seek to achieve these goals. Participatory rights, in particular political participation remains more difficult to gain consensus on, and many state parties have entered reservations to these provisions. Nonetheless the consensus that exists at international level and the recognition by states of this vulnerable section of its population has made the rights package of this particular Convention the most exhaustive.

Monitoring System: The Committee on the Rights of the Child (CRC) is in charge of monitoring the implementation of this Convention. Its mandate in this area is broad and spreads beyond the monitoring of state parties’ reports. It also seeks to provide technical advice and activism and advocacy with regards to child rights issues.

Reporting System:
State Party Reporting

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6. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984

Entry into Force: 26 June 1987, in accordance with article 27 (1). REGISTRATION: 26 June 1987, No. 24841. TEXT: United Nations, Treaty Series, vol. 1465, p. 85. STATUS: Signatories: 66. Parties: 118

General Scope: This Convention builds on the existing norm of jus cogens against torture in international law. It seeks to codify those provisions by defining torture and creating a system by which occurrences of torture can be monitored by an independent regime.

Rights Package: The rights package of this particular convention unlike the others studied above, is for the single point elimination of all forms of torture. Nonetheless it takes in specific obligations such as the right against refoulement and the obligation for states to criminalize acts of torture.

Monitoring Mechanism: the Committee Against Torture (CAT) an independent body of 10 experts, serving in their personal capacity oversee the implementation of the Torture Convention. The Committee considers reports submitted to it by state parties and also has special powers of investigation whereby when expressly provided by states, the Committee is empowered to receive information and institute inquiries concerning allegations of systematic practice of torture in the States Parties. It may also consider individual communications if the concerned state party has made an express declaration under article 22.

Reporting System:
State Reporting
Inter-State Mechanism (declaration under article 21)
Individual Petition Mechanism (declaration under article 22)
Investigative Powers (declaration under article 20)

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7. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

Adopted by General Assembly resolution 45/158 of 18 December 1990, as of 5 February 2002 still only 7 states (of the required 20) had ratified the Convention. With the ratification by Guatemala, it will now enter into force on 1 July 2003.
Press release

General Scope: This Convention constitutes an attempt to provide human rights safeguards to all migrant workers and members of their families without discrimination. For the purposes of the Convention a ‘migrant worker’ is considered to be any person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national. The protection of such persons has been a lacuna in the human rights systems and this Convention attempts to fill that gap.

Rights Package: Article 7 of the Convention seeks to guarantee the right of non-discrimination for migrant workers. In addition the rights package is contained in Part III, Articles 8-35 of the Convention. This contains a detailed list of rights entitlements, taking in civil, political, economic, social and cultural rights that are available to all migrant workers. In addition to this migrant workers and members of their families who are documented or in a regular situation in the State of employment enjoy additional rights set out in Part IV Articles 37-56. Part V then documents the rights entitlements of other categories of migrant workers.

Monitoring Mechanism: The Convention is envisaged as being monitored by the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CPRMW) initially consisting of 10, rising to 14 members. This Committee is expected to monitor state reports, working closely with the International Labour Organisation (ILO) which has experience of examining safeguards in the field of labour relations. It also has an inter-state mechanism and an individual reporting system accessible by express declaration under article 76 and 77 respectively.

Reporting System:
State Reports
Inter-state mechanism (declaration under article 76)
Individual Reporting Mechanism (declaration under article 77)

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Notes:
[1] See web-site of the High Commissioner for Human Rights www.unchcr.ch

[2] Also see McGoldrick D., The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford: Clarendon Press, 1994)

[3] Article 28, ICCPR

[4] For a compilation of General Comments on the ICCPR www.unhchr.ch/tbs/doc.nsf pp.110-174

[5] Article 40, ICCPR

[6] Article 41, ICCPR

[7] www.unhchr.ch

[8] See below

[9] Articles 6,7,8, ICESCR

[10] Articles 13 & 14, ICESCR

[11] Articles 9, 10, 11, 12, ICESCR

[12] See Article 15, ICESCR

[13] www.ilo.org

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