Introduction to the UN Human Rights Treaty System
The U.N. treaty system definitively establishes the legitimacy of international
interest in the protection of human rights. It is undisputed that sovereignty
is limited with respect to human rights. International supervision is valid
and states are accountable to international authorities for domestic acts affecting
human rights. The treaty standards are the benchmark for assessment and concern.
Over the last decade ratifications in the treaty system and acceptance of communication
procedures have risen exponentially. What began as an assertion of a few, is
now a global proclamation of entitlements of the victims of human rights abuse.
Furthermore, this participation by states has been voluntary. The obligations
of the human rights treaties have been freely assumed. It is the legal character
of these rights which places them at the core of the international system of
human rights protection. For these rights generate corresponding legal duties
upon state actors, to protect against, prevent, and remedy human rights violations.
The primary aims of the treaty system are to:
- encourage a culture of human rights
- focus the human rights system on standards and obligations
- engage all states in the treaty system
- interpret the treaties through reporting and communications
- identify benchmarks through general comments and recommendations
- provide an accurate, pragmatic, quality end product in the form of
- concluding observations for each state
- provide a remedial forum for individual complaints
- encourage a serious national process of review and reform through
- partnerships at the national level
- operationalize standards
- mainstream human rights in the UN system and mobilize the UN community
- assist with implementation and the dissemination of the message of rights
The human rights treaty system encompasses nine major treaties:
- the Convention on the Elimination of all forms of Racial Discrimination (CERD) (in force 4 January 1969)
- the International Covenant on Civil and Political Rights (CCPR) (in force 23 March 1976)
- the International Covenant on Economic, Social and Cultural Rights (CESCR) (in force 23 March 1976)
- the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW)(in force 3 September 1981)
- the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)(in force 26 June 1987)
- the Convention on the Rights of the Child (CRC) (in force 2 September 1990)
- the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) (in force 1 July 2003)
- Convention on the Rights of Persons with Disabilities (CRPD) (in force 3 May 2008)
- the International Convention for the Protection of all Persons from Enforced Disappearance (CED) (in force 23 December 2010).
The Treaty Bodies
The nine treaties are associated with nine treaty bodies which have the task of monitoring the implementation of treaty obligations. The treaty bodies meet primarily in Geneva, and are serviced by the Office of the UN High Commissioner for Human Rights (OHCHR). These are:
- the Committee on the Elimination of Racial Discrimination (CERD)
- the Human Rights Committee (HRC)
- the Committee on Economic, Social and Cultural Rights (CESCR)
- the Committee on the Elimination of Discrimination Against Women (CEDAW)
- the Committee Against Torture (CAT)
- the Committee on the Rights of the Child (CRC)
- the Committee on Migrant Workers (CMW)
- the Committee on the Rights of Persons with Disabilities (CRPD)
- the Committee on Enforced Disappearance (CED).
In addition, there is the CAT Subcommittee on the Prevention of Torture (SPT), which is mandated to carry out state visits under the Optional Protocol to the Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment
Prior to 2008, CEDAW met in New York and was serviced by the UN Division for the Advancement of Women.
The treaty bodies are composed of members who are elected by the states parties to each treaty (or through the UN Economic and Social Council (ECOSOC) in the case of CESCR). In principle, treaty members are elected as experts who are to perform their functions in an independent capacity.
The Functions of the Treaty Bodies
Meeting periodically throughout the year, the treaty bodies fulfill their monitoring function through one or more of several different methods.
First, all states parties are required by the treaties to produce state reports on the compliance of domestic standards and practices with treaty rights. These reports are reviewed at various intervals by the treaty bodies, normally in the presence of state representatives. Concluding observations, commenting on the adequacy of state compliance with treaty obligations, are issued by the treaty bodies following the review.
Second, in the case of all nine treaties there are provisions by which individuals may complain of violations of their rights under the treaty. These complaints are considered by the treaty body which expresses a view as to the presence or absence of a violation. The Committees are also able to take urgent action in appropriate cases by requesting the State party concerned take "interim measures" pending the final outcome of the communication. In the case of the Migrant Workers Convention (CMW), the Covenant on Economic, Social and Cultural Rights (CESCR OPT) and the Convention on the Rights of the Child (CRC OPT - Communications), this optional individual complaint mechanism is not yet in force.
Third, in the case of seven of the treaties, a state may declare that it allows the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the treaty. This state-to-state complaint procedure has not been used in practice. The possibility of using this mechanism is provided in the Racial Discrimination Convention (CERD), the Civil and Political Covenant (CCPR), the Convention Against Torture (CAT), Enforced Disappearance Convention (CED), Economic, Social and Cultural Rights Covenant (CESCR OPT – not yet in force), Child Rights Convention (CRC OPT - Communications – not yet in force) and the Migrant Workers Convention (CMW – not yet in force).
Fourth, in the case of five treaties, their work can include other special mechanisms, such as an inquiry procedure, whereby the Committee may investigate a state where it has received reliable information indicating grave or systematic violations of rights. Under the inquiry procedure, a Committee may request missions or visits to states parties. In addition, two of the treaties have a separate mechanism allowing for state visits independent of this inquiry procedure. One treaty allows for urgent action to request that a disappeared person be found. These special mechanisms are found in the following treaties:
Fifth, the treaty bodies also contribute to the development and understanding of international human rights standards through the process of writing General Comments or Recommendations. These are commentaries on the nature of obligations associated with particular treaty rights and freedoms.
- The Women’s Rights Convention (CEDAW OPT) provides for an inquiry procedure where the Committee receives reliable information indicating grave or systematic violations by a state party of rights set forth in the Convention. State visits may be included in the inquiry procedure, with the consent of the state party.
- The Convention Against Torture (CAT) provides for an inquiry procedure where the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practiced in the territory of a state party. State visits may be included in the inquiry procedure, with the consent of the state party. In addition, the Optional Protocol to the Convention Against Torture (CAT OPT) provides for the establishment of a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.
- The Child Rights Convention (CRC OPT - Communications) provides for an inquiry procedure where the Committee receives reliable information indicating grave or systematic violations by a state party of rights set forth in the Convention. State visits may be included in the inquiry procedure, with the consent of the state party. The Optional Protocol is not yet in force.
- The Disability Rights Convention (CRPD OPT) provides for an inquiry procedure where the Committee receives reliable information indicating grave or systematic violations by a state party of rights set forth in the Convention. State visits may be included in the inquiry procedure, with the consent of the state party. The Optional Protocol is not yet in force.
- Under the Enforced Disappearance Convention (CED), there are three unique mechanisms. First, a request that a disappeared person should be sought and found may be submitted to the Committee, as a matter of urgency, by relatives of the disappeared person or their legal representatives, their counsel or any person authorized by them, as well as by any other person having a legitimate interest. The Committee may request that the state party take all the necessary measures, including interim measures, to locate and protect the person concerned, and the Committee will work with the state party concerned for as long as the fate of the person sought remains unresolved. Second, where the Committee receives reliable information indicating that a state party is seriously violating the provisions of the Convention, it may request one or more of its members to undertake a visit. Finally, the Committee may take action if it has received well-founded indications that enforced disappearance is being practiced on a widespread or systematic basis in the territory under the jurisdiction of a state party, by urgently bring the matter to the attention of the General Assembly of the United Nations, through the Secretary-General of the United Nations.
The National Level
Significantly, the international system has had implications at the national
level. A multitude of domestic legal systems have been affected by the treaties.
The treaties form the basis of a significant number of the world's bills of
rights. There are also numerous instances of legal reform prompted by the treaties.
Non-governmental organizations and national human rights institutions have invoked
the treaty standards in relation to proposed government legislation and policies.
Legislative committees have used treaty standards as reference points. The treaties
have sometimes been incorporated into national law, had direct application through
constitutional provisions to national law, and been used to interpret domestic
law through judicial intervention.