How To Complain About Human Rights Treaty Violations
Brief Overview of Principal UN Human Rights Treaties That Do Not Contain Complaint Mechanisms or Contain Complaint Mechanisms Not Yet In Force
- The International Covenant on Economic, Social and Cultural Rights
- The Convention on the Rights of the Child
- The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
a) The International Covenant on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights (CESCR) was adopted by the General Assembly on 16 December 1966. The CESCR entered into force on 3 January 1976. Over three-quarters of UN member states are parties to the Covenant.
The Covenant guarantees economic, social and cultural rights, including rights relating to work in just and favourable conditions; an adequate standard of living, including clothing, food and housing; the highest attainable standards of physical and mental health; education and the enjoyment of the benefits of cultural freedom and scientific progress.
The Covenant outlines the legal obligations of states parties under the Covenant. States are required to take positive steps to implement these rights, to the maximum of their resources, in order to achieve the progressive realization of the rights recognized, particularly through the adoption of domestic legislation. (Article 2)
The treaty itself does not provide for the creation of a monitoring body, and during the initial years the states parties merely reported to a working group of the Economic and Social Council (ECOSOC) of the UN. In 1985 however, ECOSOC decided to establish an expert committee. Thus, since 1986 responsibility for monitoring the implementation of the Covenant has been delegated to a committee of independent experts, the Committee on Economic, Social and Cultural Rights (CESCR).
The Covenant does not have an individual complaints mechanism associated with it, although the Committee has recommended the adoption of such a complaints procedure. In 1996, the Committee adopted and submitted to the Commission on Human Rights for its consideration a report and proposed text of a draft optional protocol, which would provide for such a complaints procedure.
b) The Convention on the Rights of the Child
The grave afflictions suffered by children such as infant mortality, deficient health care and limited opportunities for basic education, as well as child exploitation, prostitution, child labour and child victims of armed conflict, led the United Nations to codify children's rights in a comprehensive and binding treaty. The Convention entered into force on 2 September 1990, within a year of its adoption by the General Assembly. The Convention is approaching universal ratification, with only two UN member states not having ratified to date.
The Convention sets forth an extensive catalogue of civil, political, economic, social and cultural rights, which states are to guarantee to children within their jurisdiction "without discrimination of any kind and irrespective of the child's or his or her parent's or legal guardian's race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status."
Some of the enumerated rights seek to protect children against practices of special danger to the welfare of children, such as economic exploitation, illicit use of drugs, all forms of sexual exploitation and abuse, and traffic in children.
One of the guiding principles of the Convention is set out in article 3(1), which declares that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
Two substantive Optional Protocols to the Convention have been adopted by the General Assembly. The Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography was adopted on 25 May 2000, and entered into force on 18 January 2002. The Optional Protocol on the Involvement of Children in Armed Conflict was also adopted on 25 May, 2000, and entered into force on 12 February 2002.
There is no individual complaints mechanism associated with the Convention or its Optional Protocols.
c) The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families was adopted by the General Assembly on 18 December 1990. Twenty ratifications are needed for its entry into force. It is not yet in force.
A migrant worker is defined in the Convention as a person who has been engaged, is engaged, or will be engaged in remunerated activity in a state of which he or she is not a national. The Convention draws a distinction between migrant workers who are lawfully working within the host state and migrant workers whose situation has not been regularized.
Under the Convention, states parties undertake to guarantee to all migrant workers, regardless of whether their status has been regularized or not, an extensive array of rights. These include many of the civil and political rights found in the CCPR, as well as certain special rights not found in other treaties that are particular to the situation of migrant workers. Rights relating particularly to the situation of migrant workers include a right upon arrest or detention to notify the consular or diplomatic authorities of one's state of origin, a right to have humanitarian considerations related to the status of a migrant worker taken into account in the imposition of a sentence, limits on the circumstances in which identity or immigration documents can be destroyed or confiscated, and certain procedural rights attendant on expulsion from the state. The Convention also includes a more limited selection of social, economic and cultural rights. With respect to workers rights, all migrant workers, regardless of whether their status has been regularized or not, have the right to non-discrimination with respect to remuneration and conditions or work, and the right to participate in trade unions.
In addition, migrant workers and members of their families who are documented, or in a regular situation, are assured an array of additional rights, aimed at protecting the human rights of migrant workers and their families throughout the migration process. The process covered includes preparation for migration, departure, transit, stay and work in another country, and return to their state of origin or habitual residence.
The Convention also recognizes certain subcategories of migrant workers, including frontier workers, seasonal workers, itinerant workers, project-tied workers, specified-employment workers and self-employed workers. It establishes certain additional rights specific to the circumstances of these categories of worker.
States parties are obliged to establish a variety of policies and procedures to promote sound, equitable, humane and lawful conditions in connection with the international migration of workers and members of their families. States parties also agree to collaborate to prevent and eliminate the illegal or clandestine movements and employment of migrant workers in an irregular situation.
When the Convention comes into force, it will establish a treaty body, called the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, to monitor its implementation.
An individual communication system is also part of this Convention. Article 77 of the Convention establishes an optional communication system which will come into force once ten states parties have made a declaration recognizing the Committee's competence to deal with individual cases. However, to date, no state has made such a declaration of competence and a new migrant workers treaty body will not be enabled to deal with individual cases for some time.