Sqritne - DEPARTMENT OF LAW & CONTINUING LEGAL EDUCATION HUMAN RIGHTS: MECHANISMS & SYSTEMS. Un System: Treaty- Based Mechanisms In addition to the ICCPR and the ICESCR, four other treaties are considered the major instruments of international human rights law. These are the convention on the Elimination of All Forms of Racial Discrimination (CERD) , The Convention on the Elimination of All Forms of Discrimination Against Women ( CEDAW); The Convention Against Torture( CAT); and the Convention on the Rights of the Child (CRC) Each of these treaties has established a body to monitor the implementation of its provisions by states parties, The six main treaty bodies are committees of independent experts nominated by their governments and elected by the states parties as individuals of high moral standing and competence in the field covered by the respective conventions. Independent experts are employed in international organizations to carry out a variety of functions, including conducting independent evaluations of state performance ina given policy area. In the field of human rights, United Nations treaty bodies constitute committees of independent experts in charge of monitoring state compliance with the major United Nations human rights treaties. The committee members serve terms of four years. The Committees are the Committee Against Torture; The Committee on Elimination of Racial Discrimination, The Committee on Elimination of Discrimination against Women; the Committee on the Rights of the Child). The Treaty- based mechanisms are as hereinbelow; State Reporting Reporting is at the heart of international supervision of domestic implementation of treaty obligations. Reporting strengthens accountability. The treaty bodies devote much time examining and responding to state reports, noting progress and deficiencies. In addition, for instance UNESCO and ILO oversee states reports and procedures to deal with complaints relating to treaties under their respective supervision. States parties must periodically submit in their reports to the relevant treaty body, indicating the measures they have adopted to give effect to the provisions of the conventions. During annual sessions, committee members review these reports in Page 1 of 13 oOpublic meetings with Government representatives and explore with them areas from further action. NGOs submit their ‘shadow reports’ providing an often-contrary assessment of the situation which the committee members may take into account when questioning the state representatives and when reaching their conclusions and recommendations. Whenever a treaty body finds that a certain state practice violates international rights standards, it invites the state to include in the subsequent periodic report information on measures taken to eliminate the violations, A recurring problem is that the states parties fail to submit reports when they are due. Dozens of reports are long overdue for each treaty body. The Committees also make general recommendations to the states parties on how they can improve their performance. Despite the magnitude of the tasks and the terms of the Conventions, the committees are understaffed and do not possess sufficient resources. This is why information provided by Non-Governmental Organizations in their "Shadow reports” are so important. % The Usual Complaints Procedure. The Complaints procedure gives individuals the opportunity to bring violations perpetrated by a government to the attention of an international forum. The international supervisory bodies have jurisdiction only in those cases where domestic remedies have been exhausted, that is when the national courts or administrative bodies have heard and rejected the claim and there is no national recourse or remedy left. The complaint or communication is admitted if it has ben submitted by or on behalf of an alleged victim, and if national remedies have been exhausted and if it is compatible with the provisions of the covenant or treaty. When the committee expresses its views on the communication, that will be a its decision though not legally binding. For example, under the CERD, the convention establishes a procedure which makes it possible for an individual or a group of persons who claim to be victims of racial discrimination to lodge a complaint with the committee on the Elimination of Racial Discrimination against the state. The complaints procedures are confidential, the meetings of implementing bodies are closed and working documents are not released publicly. Under treaty-based procedures however, all final decisions are made public. Also, under the Optional Protocol on the Committee on the Elimination of Discrimination against women, the protocol establishes a mechanism for individuals to file claims alleging violations under CEDAW to the Committee. This procedure is optional because a treaty body cannot consider complaints against relating to a state party unless that state has expressly recognized the trey body’s competence in this regard, by either a declaration under the treaty or by accepting the relevant optional Page 2 of 13 | | | t | iprotocol. The Committees however cannot enforce the quasi-judicial decision but states parties have implemented the recommendations and granted a remedy. Who can complain? Any individual who claims that his or her rights under the treaty have been violated by a state party 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 if individuals themselves have given their written consent or are incapable of giving such consent, © Inquiries Five Treaty Bodies namely the Committee against Torture, The Committee on the Elimination of Discrimination against Women. The Committee on the Rights of persons with Disabilities, The Committee on Enforced Disappearances, the ‘Committee on Economic Social and cultural Rights and the Committee on the Rights of the Child ( when relevant protocols enter into force) may initiate inquiries if they receive reliable information containing well-founded indications of serious , grave or systematic violations of the conventions in a state Party. Which states may be subject to inquiries? With the exception of inquiries by the Committee on Enforced Disappearances, for which state parties automatically accept the Committee’s competence when they ratify the convention, inquiries may be undertaken by the other committees only with respect to the state parties that have separately and additionally recognized their competence in that regard. At the time of signature, ratification or accession, state parties to the Convention against Torture may opt out by making a declaration under article 28 of the convention. State parties to the optional protocol to the Convention on the Elimination of All Forms of Discrimination Against Women may similarly exclude the competence of the committee by making a declaration under Article 10 of the convention, States may equally opt out of the Optional Protocol to the Convention on the Rights of persons with Disabilities by making a declaration, The Inquiry Procedure. The said Conventions as mentioned above all set out the following basic procedure {or their committees to undertake urgent inquiries (@) The procedure is initiated if the committee receives reliable information indicating that the rights contained in the treaty are being systematically violated by a state party. (b) The Committee first invites the state party to cooperate in the examination of the information by submitting observations. (©) The Committee may on the basis of the State party’s observations and other relevant information, available to it, decide to designate one or more of its members to make a confidential inquiry and report to the committee urgently. Page 3 of 13 i [(d) The findings of the designated member(s) are then examined by the committee and transmitted to the state party together with any appropriate comments or suggestions/ recommendations. (@) Some treaties/ Conventions prescribe a deadline for the concerned party to respond with its own observations on the committees findings, comments and recommendations and to inform the committee taken in response to the inquiry the committee invites it to do so; for instance the Convention on the Rights of Persons with Disabilities prescribes a six- month period for the state to respond. (Q) The Committee may decide in consultation with the State party, to include a summary account of the results in its annual report. If the state party agrees, the full inquiry and the state party’s response may be made public. (g) The cooperation of the state party must be sought throughout the proceedings. ‘% Urgent action and Urgent Appeals to the General Assembly. Some conventions for instance the International Convention for the Protection of Persons from Enforced Disappearances enable their committees to take urgent action by transmitting the communication to the state party concerned and requesting it to provide observations within the time frame set by the committee. However, if the violations amount to widespread or systematic acts for instance crimes against humanity, the committee may after seeking form the state party concerned all the relevant information on the situation, bring the matter to the urgent attention of UNGA through the Secretary General. ‘> Early warning and Urgent action, Some committees like the Committee on the Elimination of All Forms of Racial Discrimination establish an early warning and urgent action procedure for prevention of serious violations of the convention. Under this procedure, the Committee may seek information form state parties and may adopt a decision expressing specific concerns addressed not only to the states parties in question but also to the Human Rights council and its special procedures, the Special Adviser of the Secretary General as well as the High Commissioner for Human Rights with a recommendation that the matter be brought to the attention of the Security Council. The committee may take action either on its own initiative or on the basis of information submitted to it by state parties. “> Regular Visits. This is a mechanism that is adopted by some treaties like the Convention against Torture (CAT) that establishes a global system of regular visits to all places where there may be serious violations of human rights. State parties are required to allow Page 4 of 13visits by the committee or the subcommittee to any place under its jurisdiction or control After the visit the subcommittee issues a confidential report with a series of recommendations to the relevant state with a view to improving the treatment of the persons under its control. The report on the visit is part of the dialogue between the subcommittee and the state party concerned. The subcommittee will publish the report whenever it is requested by the state concerned, 4 Inter-state communications This is a rare procedure that involves exhaustion of local remedies for states that have accepted the competence of the relevant committee. It involves resolution of disputes through establishment of an ad hoc conciliation commission to resolve the dispute. & General Comments. Each Treaty body publishes its interpretation of the provisions of its respective human rights treaty in form of General Comments or General Recommendations. ‘These cover a wide range of subjects from the comprehensive interpretation of the substantive provisions such as the right to life or the right to adequate food etc to general guidance on the information that should be submitted to state parties relating to specific articles of the treaties. General Comments have also dealt with wider cross-cutting issues such as the role of national human rights institutions, the rights of persons with disabilities, violence against women and the rights of minorities. + Days of General/ Thematic Debates. Some treaty bodies hold days of general discussion on particular theme of concern to them. These discussions usually open up to external participants such as the UN partners, delegations from states parties, NGOs and individual experts. Their outcome may lead to the treaty body coming up with a general Comment, Page 5 of 13‘Treaty-based bodies. The United Nation's work in human rights is carried out by a number of bodies. When researching human rights issues, a distinction must be made between Charter-based and treaty-based human rights bodies. These bodies: + Derive their existence from provisions contained in a specific legal instrument; + Hold more narrow mandates: the set of issues codified in the legal instrument; % Address a limited audience: only those countries that have ratified the legal instrument; and ‘4 Base their decision-making on consensus. Nine UN human rights conventions have monitoring bodies to oversee the implementation of the treaty provisions. The treaty bodies are composed of independent experts and meet to consider State parties’ reports as well as individual complaints or communications. They may also publish general comments on human rights topics related to the treaties they oversee. The treaty-based bodies tend to follow similar patterns of documentation. Following the completion of the reform of the Charter-based human rights bodies and the establishment of the Human Rights Council, focus shifted to the reform of the treaty-bodies. On 9 April 2014, the General Assembly adopted a resolution on "Strengthening and enhancing the effective functioning of the human rights treaty body system" The Secretary-General issues a ‘Compilation of guidelines on the form and content of reports to be submitted by States parties to the international human rights treaties. This document provides details on the reporting requirements, including the core document, and treaty-specific documents. ‘The Committees may also issue general comments on thematic issues. These have been issued in "International human rights instruments: Compilation of General Comments and General Recommendations adopted by human rights treaty bodies" In addition to the Committees composed of experts, there are also Meetings of the States parties for the human rights conventions, ‘The name of a human rights convention and its monitoring body are often very similar and may have the same acronym. The acronyms for our purposes, refer to the treaty- monitoring bodies, not the conventions, Human Rights Committee The Human Rights Commitee (HRC) monitors the implementation of the International Covenant on Civil and Political Rights and its optional protocols. Page 6 of 13,‘The First Optional Protocol to the International Covenant on Civil and Political Rights is an international treaty establishing an individual complaint mechanism for the International Covenant on Civil and Political Rights. It was adopted by the UN General Assembly on 16/12/1966. The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, is a subsidiary agreement to the International Covenant on Civil and Political Rights. It was created on 15 December 1989 This Committee was established pursuant to Article 28 of the Covenant on Civil and Political Rights. Meets in three sessions each year in New York and Geneva. First session held in 1977 ‘Main types of documents considered or issued by the Committee There are three main types of matters considered by the Human Rights Committee: State party reports, general comments on thematic matters related to the Covenant, and individual complaints. It may also consider inter-state complaints. + States parties’ reports > Initial report is submitted within one year of the Covenant’s entry into force for the State party. > Periodic reports are requested by the Committee, usually every four years » Committee discusses the State's report and issues concluding observations and comments + General comments Provide the Committee's interpretation of the content of human rights provisions on thematic issues > Issued as individual documents and included in sessional report v * Individual communications > The Committee may consider individual communications relating to States parties to the First Optional Protocol to the International Covenant on Civil and Political Rights > Documents are often restricted; > Called the case law of the Committee Committee on Economic, Social and Cultural Rights ‘The UN Committee on Economic, Social and Cultural Rights (CESCR) oversees the implementation of the International Covenant on Economic, Social and Cultural Rights and its Optional Protocol. Page 7 of 13About the Optional protocol, on December 10th, 2008, on the 60th anniversary of the Universal Declaration of Human Rights, the United Nations General Assembly adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR). The adoption of the Optional Protocol represents a historic advance, confirming the equal value and importance of all human rights. Forty-two years after a similar mechanism was adopted for civil and political rights. The Optional Protocol is important because it provides victims of economic, social and cultural rights violations who are not able to get an effective remedy in their domestic egal system with an avenue for redress, ‘The OP allows individuals to bring complaints about violations of their economic, social, and cultural rights to the attention of the Committee on Economic, Social & Cultural Rights. The Committee is the main monitoring body for the International Covenant on Economic, Social & Cultural Rights. The Optional Protocol also provides for an inquiry procedure, which will allow the Committee to initiate an investigation if it receives allegations of grave or systematic violations of the ICESCR (although this is subject to an opt-in clause by governments). The Committee established by Economic and Social Council resolution meets in two sessions each year in Geneva. First session held in 1987 Main types of documents considered or issued by the Committee The main types of matters considered by the Committee: State party reports and general comments on thematic matters related to the Covenant. The Committee also devotes one day of each session to general discussion. In addition, in accordance with the Optional Protocol, the Committee has the authority to review and consider communications from individuals and communications from State Parties regarding other State Parties + State parties’ reports > Economic and Social Council resolution establishes the pattern for State parties reports; > Initial report is submitted within two years of the Covenant's entry into force for the State party concerned; Subsequent periodic reports should be submitted every five years Committce discusses the State's report and issues concluding observations and comments vv + General comments Page 8 of 13Provide the Committee's interpretation of the content of human rights provisions on thematic issues > Issued as individual documents and included in sessional report ss © General discussions ® General discussions focus on a particular right or a particular aspect of the Covenant; > Meeting records may be issued; > Meeting summary and outcome may be provided in the sessional report Committee on the Elimination of Racial Discrimination The Committee on the Elimination of Racial Discrimination (CERD) monitors the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination. + Established pursuant to article 8 of the Convention + Meets in two sessions each year in Geneva + First session held in 1970 Main types of documents considered or issued by the Committee There are several procedures around which documents are issued by CERD: State party reports, early-warning, inter-state complaints, individual complaints, general comments, and thematic discussions. + State parties reports © Initial report is submitted within one year of the Covenants entry into force for the State party concerned Subsequent periodic reports are required every two years Committee discusses the State's report and issues concluding observations + Enrly-warting © Aim to prevent the escalation of conflict © CERD may issue a decision, statement, or send a letter to the State * Inter-state complaints © Articles 11-13 provide for this, but it has never been used + Individual complaints © CERD may consider complaints relating to States parties who have made the necessary declaration under article 14 of the Convention * General comments © Provide CERD's interpretation of the content of human rights provisions on thematic issues; © Issued in the sessional report + Thematic discussions © CERD holds regular thematic discussions on issues related to racial discrimination and the Convention © Informal meeting followed by a plenary meeting, Page 9 of 13, | | |© Summary record of the plenary meeting issued Committee on the Elimination of Discrimination against Women The Committee on the Elimination of Discrimination against Women (CEDAW) monitors the implementation of the Convention on the Elimination of All Forms of Discrimination against Women and its optional protocol. + Established pursuant to Article 17 of the Convention + Meets in two sessions each year © Beginning in 2008, meetings are held in Geneva © Previously meetings were held in New York or Vienna + First session held in 1982 Main types of documents considered or issued by the Committee There are several types of matters considered by the CEDAW: State party reports, individual complaints, inquiries into situations, and general recommendations. + State parties reports © Initial report within one year after its entry into force for the State Party concerned © Subsequent reports required every four years © CEDAW discusses the State's report and issues concluding observations + Individual complaints ° CEDAW may consider communications from individuals or groups of individuals submitting claims of violations of rights protected under the Convention © Considered "jurisprudence" + Inquiries into situations © CEDAW may inquire into situations of grave or systematic violations, if the State concerned agrees ® The procedure is confidential and the cooperation of the State party must be sought throughout General recommendations © Provide CEDAW's recommendation on issues affecting women to which it believes the States parties should devote more attention © Issued in the sessional report for the session at which the recommendation was adopted Committee against Torture The Committee against Torture (CAT) monitors the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, The Subcommittee on Prevention of Torture (SPT) monitors the optional protocol, The Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) is a new kind of treaty body in the United Nations Page 10 of 13 | |human rights system. It has a preventive mandate focused on a proactive approach to preventing torture and ill treatment, States that ratify the Optional Protocol to the Convention Against Torture (OPCAT) give the SPT the right to visit their places of detention and examine the treatment of people held there The Protocol also obliges States to set up independent National Preventive Mechanisms (NPMs) to examine the treatment of people in detention, make recommendations to government authorities to strengthen protection against torture and comment on existing or proposed legislation. The SPT assists and advises NPMs in their work, Uganda ratified the Convention against Torture (CAT). However, it has not ratified the Optional Protocol to the Convention against Torture (OPCAT). + Established in accordance with Article 17 of the Convention + Meets in two sessions each year in Geneva + First session held in 1988 ‘Main types of documents considered or issued by the Committee There are several types of matters considered by CAT: State party reports, individual complaints, inquiries into situations, and general comments. It may also consider inter-state complaints. + State parties reports © Initial report within one year after its entry into force for the State Party concerned © Subsequent reports required every four years © CAT discusses the State's report and issues concluding observations © Individual complaints © CAT may consider individual communications regarding the violation of rights under the Convention © Considered "jurisprudence" + Inquiries into situations © Procedure is confidential and the cooperation of the State party must be sought throughout + General comments © CAT issues general comments on topics related to the Convention Committee on the Rights of the Child ‘The Committee on the Rights of the Child (CRC) monitors the Convention on the Rights of the Child and its optional protocols. + Established pursuant to Article 43 of the Convention; + Meets in three sessions each year in Geneva; * First session held in 1991, Page 11 of 13,Main types of documents considered or issued by the Conunittee The CRC considers State party reports, issues general comments, and holds general discussions. An Optional Protocol opened for signature in 2012 will allow the CRC to hear individual complaints. + State parties reports ° Initial report within two years of the convention's entry into force for the State party concerned © Subsequent reports required every 5 years © CRC discusses the State's report and issues concluding observations * General comments ° Provide CRC's interpretation of the content of human rights provisions on thematic issues © Issued in the sessional report + General discussions © CRC organizes a day of general discussion for a variety of stakeholders ° Usually held each year on a particular theme Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) monitors the implementation of the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. + Established pursuant to Article 72 of the Convention * Meets in two sessions each year in Geneva + First session held in 2004 Main types of documents considered or issued by the Committee ‘The CMW considers State party reports, issues general comments, and can hold general discussions. When 10 State parties have made the necessary declaration under article 77, the CMW may consider individual complaints. * State parties reports © Initial report within one year of its entry into force for the State Party concerned 2 Subsequent reports every five years © CMW discusses the State's report and issued concluding observations + General comments © CMW issues general comments on topics related to the Convention © Available on the website, not issued in the sessional report * General discussions © CMW may organize a day of general discussion on a particular theme © Meeting report may be included in the sessional report Committee on the Rights of Persons with Disabilities Page 12 of 13The Committee on the Rights of Persons with Disabilities (CRPD) monitors the implementation of the Convention on the Rights of Persons with Disabilities and its optional protocol. + Established pursuant to Article 34 of the Convention + Meets in two sessions each year in Geneva + First session held in 2009 Main types of documents considered or issued by the Committee ‘The CRPD considers State party reports, and holds general discussions. The CRPD may consider individual complaints in accordance with the optional protocol. + State parties’ reports © Initial report within two years of the Convention's entry into force for the State party concerned © Subsequent reports every four years © CRPD discusses the State's report and issues concluding observations * General comments © CRPD issues general comments on topics related to the Convention Available on the website, not issued in the sessional report + General discussions © CRPD may organize a day of general discussion on a theme © A summary of the day may be included in the sessional report Page 13 of 13,