Monitoring Upholding International Human

Introduction

The International Covenant of Civil and Political Rights (ICCPR) and the International Covenant of Economic, Social, and Cultural Rights (ICESCR) and other human rights treaties adopted under the aegis of the United Nations, establish rights of people and duties of governments. In order to monitor the implementation of these rights established under the treaties, the United Nations Human Rights Treaty Bodies are established. Treaty bodies are committees of experts created under the treaties and working under the aegis of the United Nations and their specific function is to monitor the implementation of specific human rights conventions by the governments of State Parties that have adopted these conventions. This essay discusses the effectiveness of the United Nations human rights treaty body system for monitoring and upholding international human rights. The essay posits that due to significant gaps in the implementation system under the United Nations, rights recognised by the treaties have not received effective implementation.

There are ten treaty based bodies under the aegis of the United Nations. These bodies monitor the implementation of the human rights treaties under the United Nations. These bodies are discussed briefly first before undertaking a critical appraisal of their function in upholding and monitoring human rights implementation.

The Human Rights Committee (CCPR) has been established to oversee the implementation of the ICCPR. It is also empowered to entertain individual communications relating to violation of ICCPR rights by States parties under the First Optional Protocol to the ICCPR. The Committee on Economic, Social and Cultural Rights (CESCR) has been established to monitor compliance by the State Parties to the ICESCR. Like the CCPR, the CESCR is also empowered to entertain individual complaints relating to violation of ICESCR rights by States parties under the Optional Protocol to the ICESCR, which entered into force in 2013.

Other than the above two treaty bodies, there are 8 other treaty bodies within the United Nations framework on human rights protection and implementation. The Committee on the Elimination of Racial Discrimination (CERD) has been established to oversee the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination. The Committee on the Elimination of Discrimination against Women (CEDAW Committee) is established to monitor compliance with the Convention on the Elimination of All Forms of Discrimination against Women. The Committee Against Torture (CAT) is established to implement the rights under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment. Furthermore, the Optional Protocol to the Convention against Torture established the Subcommittee on Prevention of Torture (SPT). Its task is to visit detention places and jails, and advise States on the best practices that can be adopted for prevention of torture and ill-treatment. The Committee on the Rights of the Child (CRC) is established to monitor compliance with the Convention on the Rights of the Child. The Committee on Migrant Workers (CMW) oversees implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. The Committee on the Rights of Persons with Disabilities (CRPD) is established under the International Convention on the Rights of Persons with Disabilities. The Committee on Enforced Disappearances (CED) monitors implementation of the International Convention for the Protection of All Persons from Enforced Disappearance. Each of these committees also has powers to hear individual complaints under the respective treaties.

The human rights bodies have created their own mechanisms under which they may ask states to respond and inform them regarding measured undertaken for the purpose of implementation of the treaties. The individuals who staff these bodies are usually persons of ‘high moral standing’ and are to work as independent individuals and not as persons who represent the interest of their home countries. So far, it would appear that steps have been taken to ensure that treaty bodies are fair and impartial assessors of the State Parties’ efforts to implement the treaty rights within their jurisdictions. However, as this essay will show, well-intended processes are not sufficient to ensure that the states will ensure that the rights are properly implemented in their jurisdictions. Thus, despite the mandate given to these treaty bodies to monitor, and facilitate implementation of rights recognised under their respective treaties, the human rights protection and implementation under is considered to be weak under the United Nations. The principal reasons for this perception of the treaty bodies’ role in implementation of the human rights standards are that the powers given to the treaty bodies generally relate to their reporting mechanisms and monitoring processes, neither of which are considered to be effective means of implementing human rights.

National reporting mechanisms are one of the three principal mechanisms that are generally prescribed for the treaty bodies, the other two being, inter-state communications, and individual complaint or petition system. National reporting mechanisms are based on the periodic reports submitted by each State Party under the respective treaties to the relevant treaty body. For instance, ICCPR, Article 40 provides that the State Parties must submit their reports to the CCPR every five years. Other treaties provide similar provisions for their respective committees or bodies. The bodies adopt concluding observations based on the reports submitted by the State Parties. These reports reflect on the measures taken by states to implement the provisions of these treaties within their jurisdictions. Some of the criticism noted about the weaknesses of the national reporting mechanisms are related to the inaccuracies, incomplete information, or simply late or missed submissions by the states. These criticisms are made because to a great extent, the submission of the reports are the responsibility of the state parties, without actual repercussions for their failures in making submissions. Another criticism of the national reporting mechanisms is that even though the reports of the states may be accurate and timely, the treaty bodies are generally not staffed adequately enough to respond to these reports and monitor them except in hasty or superficial manner. This has led to the development of the term ‘treaty fatigue’ to describe the overburdened treaty bodies that are grappling with the increasing number of reports submitted to them (as the membership of the treaties rise), and are not able to monitor or review these reports in an adequate manner.

Another criticism related to national reporting mechanism relates to the concluding observations made by the human rights bodies. Concluding observations, although an important part of implementation mechanism, may suffer from a serious lacuna in that these are usually made in a short period of time that the treaty bodies may provide for studying each country’s report, so that the observations are more general than specific and have marginal jurisprudential impact. On the other hand, it has been argued that concluding observations is the most important activity undertaken by the treaty bodies because it allows the bodies to give a well-considered overview of the human rights protection in a country and recommend ways for improvement. It may also be noted that human rights bodies have also been criticised for making an overwhelming number of recommendations (at times between 100 to 350 recommendations) that the states are expected to implement in a short period of 4 to 5 years before the next report is due. This may have the undesirable effect of states treating recommendations as burdensome and further justifying the failure of implementation based on the unmanageable nature of the recommendations.

Despite the criticism of the national reporting system as discussed above, it will be fair to say that the reports submitted by the State Parties can be important in some ways. For example, these reports being public reports, they can drive domestic discussion and debate on the specific human rights by the civil societies, NGOs, media and the government.

Inter-state communications are the next major mechanism for monitoring of human rights recognised under the treaties. This is a standard mechanism under all treaties, which allows one State Party to gove communication on the violation of rights under the treaty by another State Party. In effect, inter-state communications allow states to complain against each other of the other is responsible for the violation of some treaty rights. Individual complaint or petition system is another standard mechanism under the human rights treaties, whereby individuals or NGOs are allowed to complain or petition against the violation of human rights by a State Party. Both inter-state communications and individual petitions are not heard by the human rights bodies unless all the domestic remedies are exhausted, or domestic remedies are unnecessarily deferred indefinitely or unlikely to bring relief even if provided access to. Furthermore, communications under either mechanism cannot be made if the same matter is submitted before another international procedure. Therefore, there are certain restrictions that are placed with respect to communications and this may mean that the state making the communication or the individual concerned will have to satisfy the conditions of admissibility. This has often led to the dismissal of a large number of individual communications as they are not able to prove that they have accessed and exhausted all domestic remedies or at times because they may have failed to provide all information; indeed despite the inclusion of individuals within the enforcement mechanisms of the human rights treaties, individuals do not find access to these mechanisms as easy. It is not necessarily correct that it should be so as the experience of the human rights mechanisms under the European law shows us, which has provided a much more effective system of redressal of human rights violations under the European Convention of Human Rights.

The lacunae in the current individual communications system have led to demands for reform of the individual communication system as it is largely seen as impracticable in the present form. It has also been argued that the entire system of hearing individual complaints is disadvantaged by the fact of its being termed ‘communication’ and not petition or complaint; if these were petitions or complaints, there could be an emphasis on the ability to pass judgments, or orders, or verdicts. Rather, once these communications are made, either under inter-state communication system or individual petition system, the state against whom the communication is made can make its submission to which the complainant can respond to; and the human rights body can finally issue its recommendations or observations, which have no binding effect. This has been noted by a number of commentators. For instance, Tomuschat notes:

“…legally, the views formulated by the Human Rights Committee are not binding on the State party concerned which remains free to criticize them. Nonetheless, any State party will find it hard to reject such findings in so far as they are based on orderly proceedings during which the defendant party had ample opportunity to present its submission.”

Even though the views of the CRCC may not be binding, states do have a duty to comply with these, as noted by Michael Steiner that “absence of a provision in the Protocol describing views as 'binding' cannot mean that a state may freely choose whether or not to comply with them. Views carry a normative obligation for states to provide the stated remedies…” Irrespective of the duty of the state to follow the views of the CRCC, it cannot be denied that neither the ICCPR not the First Optional Protocol provides the CRCC with the power to issue binding directions. In the absence of such powers, the comments or observations of the CRCC are merely recommendary in nature and do not have any binding effect.

There are mechanisms other than the ones discussed above, which are also included in the human rights bodies’ scope. Predominant amongst these are procedure of inquiry, general comments, and thematic discussions. Procedure of inquiry may be carried through by the body to investigate into specific cases of treaty violations. However, this is triggered inly in case of grave and systematic cases of violations. Inquiries are conducted by members authorised by the human rights body and these members submit their reports which are then sent to the state concerned, which has opportunity to respond. The drawback of these inquiries is that these are confidential in nature and the reports are never made public. The criticism against this mechanism is also that it may not be applied in all cases that deserve its application. Moreover, in some cases, even though the member of the body may be authorised to conduct the inquiry but he may not be able to conduct the inquiry as he may not gain admission into the state territory or may not receive assistance from domestic agencies for making such inquiries. General comments are issued by the human rights bodies to encompass any area of concern or interest within the treaty scope. These comments are published, but they have no binding authority and are merely conscientious in nature. Finally, thematic discussions are conducted within the human rights bodies allowing NGOs and UN Specialised bodies to participate in the discussions.

Conclusion

The observance of human rights under the UN treaties depends greatly on the monitoring and reviewing of the treaty application in the State Parties by the human rights bodies that have been organised under the treaties. The principal mechanisms for the implementation of these treaties are considered to be inadequate for meeting the observance of human rights under these treaties. The reporting system is flawed because reports can be manipulated, or not submitted by the State Parties. There is also a problem of treaty fatigue that is being seen in the work of the various bodies because they are having to deal with a number of reports and respond to them in short period of time, making their review of the reports superficial and generalised in terms of observations. This does not serve the purpose. The communications under inter-state mechanisms and individual petitions are sometimes barred due to inadmissibility. Indeed, individual communications suffer more from this flaw and often individual petitions are not admitted due to these flaws. Even if submitted, human rights bodies do not have the power to give any conclusive judgments, and can only make recommendations to the State Parties. This is often inadequate to ensure that the State Parties will respond to these recommendations and improve on the human rights situation in their jurisdictions. Therefore, it may be concluded that there are many drawbacks in the system of implementation of human rights under the UN treaties. The bodies that are established to oversee the implementation of these rights do not have adequate mechanisms to ensure implementation. There is a need to review these mechanisms and seek ways for improving these.

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