How To Complain About Human Rights Treaty Violations
The Basic International Rules
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a) What Is a Treaty?
A treaty is an agreement between two or more states which creates binding rights and obligations in international law. The principal international human rights treaties are multilateral, and are open to as many states as want to join. A treaty may go by many different names, such as "convention", "covenant" and "protocol." The obligations contained in a treaty are based on consent. States are bound because they agree to be bound. States who have agreed to be bound by a treaty are known as "states parties" to the treaty.
b) What Is the Effect of a Treaty?
By becoming a party to a treaty, states undertake binding obligations in international law. In the case of international human rights treaties, this means that states parties undertake to ensure that their own national legislation, policies or practices meet the requirements of the treaty and are consistent with its human rights standards.
c) How Does a State Become Bound by a Treaty?
In general, states parties to the international human rights treaties express their consent to be bound by a particular treaty by a two-step process, first, signature and then ratification or accession. A state that signs a treaty signals its intention to become bound by its provisions and must refrain from acts which would defeat the object and purpose of the treaty. The state does not actually become bound by the treaty until it ratifies it.
For a treaty to enter into force for a particular state, the ratification or accession must be deposited. The depository is an entity which undertakes to receive ratifications, accessions and other related statements, and keeps other states parties informed. For the UN human rights treaties, the depository is the UN Secretary General, specifically the UN Office of Legal Affairs.
d) When Does a State Become Bound by a Treaty?
A state party will become bound by obligations under the treaty on the later date of:
i) The date the treaty comes into force. The six major international human rights treaties have entered into force.
ii) The date the treaty enters into force for the particular state. A state may still ratify or accede to a treaty many years after that treaty has entered into force for other states.
e) What Obligations Has a State Undertaken?
In order to determine what obligations a particular state has undertaken by ratifying a treaty, it is necessary to consider the following:
- Look carefully at the text of the treaty. What are the rights and freedoms required to be protected? Are the rights provided for in the treaty limited in any way? Are there circumstances in which states parties are allowed to restrict the rights spelled out?
- Consider how the obligations in the treaty have been interpreted in the past. The treaty monitoring body or treaty body serves as the most authoritative source of interpretation of the treaty. The treaty body's interpretation of the treaty can be found in the following sources:
- "Concluding observations" or "concluding comments" made by the treaty body in response to state reports. Over the past thirty years more than 1000 state reports have been considered. In the last decade all treaty bodies have made concluding observations following the examination of a report.
- The treaty body's final decisions (called "Views" or "opinions") on individual cases. Individual cases are known as "communications", "complaints", or "petitions". Over the past two decades the treaty bodies have made hundreds of decisions on individual cases, about half of which have been substantive findings on the merits. To date, the vast majority of these cases have been decided by the Human Rights Committee.
- General Comments/Recommendations made by the treaty body on the interpretation of particular rights in the treaty. Treaty bodies occasionally issue General Comments or Recommendations on the meaning of treaty obligations. These generally provide a very useful analysis and elaboration of treaty provisions. To date, about one hundred general comments or recommendations have been made.
- Consider the content of any "reservations" made by a state party. A reservation made by a state when ratifying a treaty, is a claim to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state. Many states parties to the human rights treaties have made reservations and they must be examined in order to know the extent of a state party's obligations.
f) Optional Undertakings
Sometimes, treaties may contain, or have associated with them, optional obligations. States parties can choose separately to be bound by these additional obligations.
In the human rights treaties there are two optional mechanisms by which states can participate in the individual complaints procedures:
- Two of the treaties specify that obligations relating to individual complaints are only undertaken if the state party makes a separate declaration indicating its wish to be bound. Not all the states that have ratified one of the these treaties have made such a declaration.
- Two of the human rights treaties have "optional protocols" associated with them. These are separate treaties under which states undertake obligations relating to individual complaints. The obligations are undertaken by separate ratification of the optional protocol. Not all the states that have ratified the original treaty have ratified the optional protocol.
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