UN TREATY-BASED PROTECTION

1. UN Human Rights Treaties (selection)

- Slavery Convention 1926

- Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of
Others, 1949
- Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children
supplementing the UN Convention against Transnational organized Crime, 2000
- Convention relating to the Status of Refugees, 1951
- Protocol relating to the Status of Refugees, 1967
- Convention on the Prevention and Punishment of the Crime of Genocide, 1948 (milestone on the field
of international criminal law and human rights law). Although it needs to be interpreted according to
criminal international law, it fulfills an important function related to human rights: preventing one of
the most serious human rights violations, genocide. In this sense the ICC can also be considered a
human rights instrument in a very wide sense.
- Geneva Convention relative to the Protection of Civilian Persons in Time of War
- Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of
Victims of International Armed Conflicts (Protocol I): it contributes to our understanding of human
rights in times of conflict although it is part of humanitarian law, not considered as part of human
rights law.
- Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of
Victims of Non-International Armed Conflicts (Protocol II).

2. Treaty-based system
International Convention on the Elimination of All Forms of Racial Discrimination, 1965: the first anti-
discrimination convention of international law.
International Covenant on Civil and Political Rights, 1966
International Covenant on Economic, Social and Cultural Rights, 1966
Convention on the Elimination of All Forms of Discrimination against Women, 1979
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984
Convention on the Rights of the Child, 1989: highest level of consensus but it does not mean that highest level
of success.
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families, 1990: very unsuccessful, several disputes with different countries
International Convention for the Protection of All Persons from Enforced Disappearance 2006
Convention on the Rights of Persons with Disabilities, 2006
3. Optional Protocols
Several Convention have been completed by optional protocols. Some are referred to material standards, so
they widen the scope of the covenant that are completing:

- Optional Protocol to the International Covenant on Civil and Political Rights (individual complain)
 - Optional protocol to the Convention on the Elimination of Discrimination against Women (individual
complaint procedure)
- Optional protocol to the Convention on the Rights of the Child on the involvement of children in
armed conflict (material scope).
- Optional protocol to the Convention on the Rights of the Child on the sale of children, child
protection and child pornography.
- Optional Protocol to the Convention on the Rights of Persons with Disabilities (individual complaint)
- Optional Protocol of the Covenant on Economic, Social and Cultural Rights (individual complaint).

4. Treaty-bodies
The common ground or fundament of the treaty-based system is the establishment of committees, treaty
committees; and it is the competence of those treaty committees to monitor and evaluate the implementation
of treaty obligations into the legal order of the state parties. All nine treaties of the treaty-based system
stablish nine different Committees:
 Human Rights Committee (CCPR), 18 members. Exception, although it is named as human rights
committee it is based on civil and political rights (however, it is not named as “committee on Civil
and Political rights”). It is named like this because in the year of its establishment the CESR was not
drafted yet, so this committee was intended to defend all human rights and not only civil and political.
 Committee on Economic, Social and Cultural Rights (CESR), 18 members
 Committee on the Elimination of Racial Discrimination (CERD), 18 members.
 Committee on the Elimination of Discrimination Against Women (CEDAW), 23 members.
 Committee Against Torture (CAT), 10 members.
 Committee on the Rights of the Child (CRC), 18 members.
 Committee on Migrant Workers (CMW), 10 members.
They are not expected to act in favor of their own countries they are expected to act in favor of the defense of
the convention. They are not financed by their own countries, it is supported by the UN or different
organizations.
5. Instruments of Control
The system of treaty-based human rights is based on the use of instrument of control. Not all treaties share the
same competences nor the same instruments of control. There are 5 instruments exercise
State Reporting (mandatory): it is mandatory for all nine human rights conventions. Committees receive state
reports about the implementation of the treaty obligations. Usually states show very positive reports about the
implementation of measures. This mechanism depends on the objectivity as the information provided by the
government will usually be positive. Thus, experts need to compare that information, ask questions to the
government and
Inter-state Complaint: some treaties allow for interstate complaints. typical procedure from one state against
another. The state alleged that the other has violated some international rule. In practice this tool has remained
in theory, states do not use it as they are afraid of political and diplomatic implications. However, there are
some successful examples at the European level but on UN level it is just theory.

- Mandatory: CERD
- Optional: CCPR, CAT

Individual Complaints: they can be brought before some committees (not every committee has the
competence). It is considered as the crown of the international rights protection, as it allows for complaint
filed by victims of HR violations who can file that complain against a state. It is mandatory under some
optional protocols.

- Mandatory: optional protocols/CCPR, CEDAW, CESCR, CRC

- Optional: CERD, CAT

Inquiry Procedure: the most important performed by the Committee Against Torture. It is also used in
CEDAW.

- CAT, Optional Protocol/ CEDAW

General Comments: time to time committees provide general comments on the provisions of HR treaties in
order to provide guidance to the state parties.
6. Individual complaint
The UN regulates through quite strict criteria the individual complaint. More than 90% of the individual
complaints are declared inadmissible for not following the admissibility criteria. The process has two stages:
the first one, focused on the formality of the claim and the second one on the merits. Admissibility procedure
has several requisites (and none of them can be left):

- Competence of the Committee recognized: the Committee must have the competence to attend that
complaint. For example, if the Committee has not ratified the optional protocol that allows for
individual complaint, then the complaint is inadmissible.
- Compatibility ratione personae, temporis, materiae, loci:
o Compability personae means that it is the right person: a victim of HR violation (not a
relative, nor friend). The victim needs to file the complaint against the right subject, that is,
the state perpetrator of the HR violations which has ratified the convention.
o Compability temporis means that the complainer cannot invoke a HR violation that happened
before the HR treaty entered into force.
o Compability materiae means that the complainer needs to refer to specific rights of the
convention
o Compability loci refers to the place.
- Exhaustion of local remedies: only once exhauster, the complainer is able to access to the
international procedure.
- No current examination under another international procedure: if so, both HR bodies would declare
the claim as inadmissible.
- Prima facie case (substantiation of the claim): the complain has to show that the case is not
unfounded.
First stage is about formal procedure requisites, and the second stage (only for the formally successful) is the
stage of the merits. At that stage the committee should look for the facts of the case and decide if it has been
violated or not.
7. Categories of HR
Within the HR community there is a debate about the justiciability of HR and if all HR can be subjected to
individual complaint. According to Vienna Declaration 1993:
All HR are universal, indivisible, and interdependent and related. The international community must treat
human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.
This suggests that all HR can be subject to individual complaint and subject to courts decision. However, in
reality, we have different generations of HR included in different conventions:
 ICCPR and ICESCR (Civil and Political & Economic, Social and Cultural Rights). Individual
complaints can only refer to ICCPR not ICESCR. Only in 2008 that optional protocol was added to
ICESCR.
ECHR and European Social Charter: similar approach as ECHR covers only civil and political rights
which can be subject to ECJ. Social CHARTER establishes social standards and there is no individual
procedure.
Thus, it seems that the approach of the IC is quite restrictive and does not treat HR equally despite of Vienna
Convention statements.
8. ICESCR 1966 (next class)