International Human Rights Law

LLM 706
International supervisory mechanisms for human rights

➢ Treaty-based mechanisms: supervisory mechanisms

enshrined in legally binding human rights instruments or
conventions

➢ Non-treaty based mechanisms: supervisory mechanisms not

based on legally binding human rights treaty obligations
- includes the Human Rights Council 1503 procedure, the
Universal Peer Review and ‘special procedures’.
UN Human Rights Standards and
Treaty Monitoring Bodies
• Convention on the Elimination of all Forms of Racial Discrimination
• International Covenant on Civil and Political Rights
• International Covenant on Economic, Social, Cultural Rights
• Convention on the Elimination of Discrimination against Women
• Convention against Torture
• Convention on the Rights of the Child
• Convention on the Protection of the Rights of All Migrant Workers
• Convention on the Rights of Persons with Disabilities
• Convention for the Protection of all Person from Enforced Disappearance
All Nine Treaties have monitoring provisions except the CRC.
Human Rights Declaration not subject or person
specific Treaties
• Universal Declaration on Human Rights
• Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief
• Declaration on the Right to Development
• Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities
• Declaration on the Rights and Responsibilities of Individuals, Groups,
and Organs of Society to Promote and Protect Universally Recognized
Human Rights
• Declaration on the Rights of Indigenous Peoples
Customary International Law of Human Rights
a) Genocide
b) Slavery or slave trade
c) Murder or causing disappearance of individuals
d) Torture or other cruel, inhuman or degrading
treatment/punishment
e) Prolonged arbitrary detention
f) Systematic racial discrimination
g) Consistent pattern of gross violations of internationally recognised
HRs
State responsibility for private violations
State is responsible when committed by its state officials as state policy,
or when committed by private persons, if they were condoned or
encouraged as state policy.
Remedies for violation of HR obligations
Any State may pursue international remedies against any other State
for a violation of CIL HRs. Obligations under CIL are erga omnes, may
pursue remedies under IL, even if victims were not nationals of the
complaining State or did not affect any particular interest of that State.

An individual victim of HR convention may pursue any remedy provided

in the Convention or by other applicable international agreements.
Procedures established in human rights
treaties
The various supervisory procedures established in human rights
treaties can be divided into four main groups:

Reporting procedures
Inter-state complaint procedure
Individual complaint procedure
Inquiries and other procedures
Reporting Procedures
• Most human rights treaties include a system of periodic reporting.
• State parties are obliged to report periodically to a supervisory body on the
implementation at the domestic level of the treaty they signed into. e.g., in
Article 40 of the ICCPR, states parties shall ‘submit reports on the
measures they have adopted which give effect to the rights recognised
herein and on the progress made in the enjoyment of those rights’.
• At the UN level, each treaty body has formulated general guidelines
regarding the form and contents of the state reports (see
HRI/GEN/2/Rev.2), and their own rules of procedures (see UN
HRI/GEN/3/Rev.1).
• Committees also receive information and reports of states’ human rights
situation from other sources, including nongovernmental organisations, UN
agencies, other intergovernmental organisations, academic institutions,
and the press.
Reporting Procedures

• Shadow Reports (alternative Reports) – NGOs, private organisations

can submit shadow reports of a State’s compliance to a treaty.
Inter-state complaint procedure
Some human rights instruments allow states parties to initiate a
procedure against another state party which is not fulfilling its
obligations under the instrument.

In most cases, such a complaint may only be submitted if both

the claimant and the defendant state have recognised the
competence of the supervisory body to receive this type of
complaint.
Individual complaint procedure
a) the alleged violating state must have ratified the convention
invoked by the individual;
b) the rights allegedly violated must be covered by the pertinent
convention invoked; and
c) proceedings before the relevant body may only be initiated
after all domestic remedies have been exhausted.
Individual complaint procedure
Individual complaint mechanisms are found in the ff. conventions:
First Optional Protocol to the ICCPR
Optional Protocol to the ICESCR
Article 22 Convention against Torture (CAT)
Optional Protocol to the CEDAW
Article 14, Elimination of Racial Discrimination (CERD)
Article 77 Convention on Migrant Workers (CMW)
Optional Protocol to CRPD (Rights of Persons with Disabilities)
Article 31 of the International Convention for the Protection of All
Persons from Enforced Disappearance.
Individual complaint procedure
Individual complaints under the mentioned treaties can be
brought only against a state that has recognised the competence
of the committee established under the relevant treaty or which is
party to the relevant optional protocols.

In the case of the ICCPR, ICESCR; CRPD and the CEDAW, a

state recognises the Committees’ competence by becoming a
party to an optional protocol which has been added to the
relevant convention.
Individual complaint procedure

There is no formal time limit after the date of the alleged violation
for filing a complaint under the relevant treaties, but the victim
should submit a complaint as soon as possible after having
exhausted domestic remedies.
Individual complaint procedure
(1503 Procedure)
• Some ‘non-treaty based procedures’, also contemplate the submission of
individual complaints.
• 1970 the UN Commission on Human Rights established the so-called
1503 procedure, which has been maintained by the UN Human Rights
Council.
• The 1503 procedure allows the UN Human Rights Council to examine
communications received from individuals and other private groups, with
the aim to ‘address consistent patterns of gross and reliably attested
violations of all human rights and all fundamental freedoms occurring in
any part of the world and under any circumstances’.
• No individual redress is possible under this procedure. Instead, the
complaints aim at identifying ‘a consistent pattern of gross and reliably
attested violations’.
Which supervisory mechanism applies?
Which specific human right has been violated?
Where has the alleged violation taken place?
Which government is held responsible and to what extent?
Which convention protects this human right?
Is the responsible state a party to an applicable human rights
treaty? If yes, how does the supervisory procedure work? If no, is
there some supervisory procedure outside the relevant
convention that could be invoked?
Reservations in Treaties
Reservations:
States may declare (upon ratification) under which conditions they consider
themselves to be bound by a treaty.
Other States may object to such reservations.
To assess the compatibility of a reservation with the object and purpose of a
general treaty for the protection of human rights, account shall be taken of
the indivisibility, interdependence and interrelatedness of the rights set out
in the treaty as well as the importance that the right or provision which is
the subject of the reservation has within the general thrust of the treaty, and
the gravity of the impact the reservation has upon it (citing International Law
Commission, Report on the Work of its Fifty-Ninth Session (7 May to 5 June and 9 July to 10 Aug.
2007), GAOR 62nd Session, Supp. No. 10 (A/62/10), at 75.
INTERNATIONAL
COURT OF JUSTICE
International Court of Justice
• Since 1946, the Court has delivered more than 110 judgments on
disputes concerning, inter alia, land frontiers, maritime boundaries,
territorial sovereignty, the non-use of force, violations of international
humanitarian law, non-interference in the internal affairs of States,
diplomatic relations, hostage taking, the right of asylum, nationality,
guardianship, rights of passage and economic rights.

https://www.un.org/en/chronicle/article/upholding-rule-law-international-level-
role-international-court-justice
International Court of Justice
• Since 1946, the Court has also given 27 advisory opinions concerning,
among others, the accordance with international law of the unilateral
declaration of independence in respect of Kosovo, the legal
consequences of the construction of a wall in the occupied
Palestinian territory, the status of human rights rapporteurs, the
legality of the threat or use of nuclear weapons, the applicability of
the United Nations Headquarters Agreement, judgments rendered by
international administrative tribunals, the territorial status of South
West Africa (now Namibia) and Western Sahara, expenses of certain
United Nations operations, reparation for injuries suffered in the
service of the United Nations, and admission to United Nations
membership.
References:

Couvreur, P. (undated). Upholding the Rule of Law at the International Level: The Role of the
International Court of Justice. https://www.un.org/en/chronicle/article/upholding-rule-
law-international-level-role-international-court-justice
Harris, D. (2010). Cases and Materials on International Law (7th ed.). Thomson Reuters.
Icelandic Human Rights Centre. Human Rights Concepts, Ideas and Fora.
http://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-
ideas-and-fora
Shaw, M. (2017). International Law (8th ed.). Cambridge University Press
Ziemele, I. and Lasma, L. (2013). Reservations to Human Rights Treaties: From Draft Guideline
3.1.12 to Guideline 3.1.5.6. The European Journal of International Law 24(4).
doi:10.1093/ejil/cht068