Vulnerable and Empowered? Girls in the Practice of the Committee on the Elimination of Discrimination Against Women and the Committee on the Rights of the Child

ABSTRACT: The article examines the merit of UN treaty bodies' accumulated case law as a resource for domestic adjudicators, i.e., courts and quasi-judicial bodies (such as national human rights institutions) addressing human rights complaints at the national level. It has the objective of assessing the extent to which treaty bodies are "talking to" an audience beyond the parties in the case. Starting from a view that sees impact on national adjudicators as the key issue for treaty bodies' rulings on individual complaints, the article assesses to what extent the way that treaty bodies are exercising this role fits in this view. The study's focus is on two UN treaty bodies with a broadly similar output in quantitative terms, the Committee on the Elimination of Racial Discrimination (CmERD) and the Committee on the Elimination of Discrimination against Women (CmEDAW).

The chapter focusses on the activity of five UN treaty bodies mandated to monitor the implementation of the core international human rights treaties – the Committee on Economic, Social, and Cultural Rights; the Human Rights Committee; the Committee on the Rights of the Child; the Committee on the Elimination of Discrimination Against Women; and the Committee on the Rights of Persons with Disabilities – and the manner in which they have reformed international law relating to extraterritorial obligations (ETOs). In particular, it explores the treaty bodies’ interpretation and classification of ETOs; their approach to regulating and enforcing remedial ETOs and global obligations, including obligations of cooperation and assistance; their methods of assigning ETOs to states and non-state actors; and their role as accountability mechanisms capable of holding states responsible for breaching ETOs. The chapter outlines some directions for further development of the treaty bodies’ practices relating to ETOs.

Transforming Hearts and Minds Concerning People with Disabilities: Viewing the UN Treaty Bodies and the Strasbourg Court through the Lens of Inclusive Equality The entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) pushed state obligations to counter prejudice and stereotypes concerning people with disabilities to the forefront of international human rights law. The CRPD is underpinned by a model of inclusive equality, which views disability as a social construct that results from the interaction between persons with impairments and barriers, including attitudinal barriers, that hinder their participation in society. The recognition dimension of inclusive equality, together with the CRPD’s provisions on awareness raising, mandates that states parties target prejudice and stereotypes about the capabilities and contributions of persons with disabilities to society. Certain human rights treaty bodies, including the Committee on the Rights of Persons with Disabilities and, to a much lesser extent, the Committee on the Elimination of Discrimination against Women, require states to eradicate harmful stereotypes and prejudice about people with disabilities in various forms of interpersonal relationships. This trend is also reflected, to a certain extent, in the jurisprudence of the European Court of Human Rights. This article assesses the extent to which the aforementioned human rights bodies have elaborated positive obligations requiring states to endeavour to change ‘hearts and minds’ about the inherent capabilities and contributions of people with disabilities. It analyses whether these bodies have struck the right balance in elaborating positive obligations to eliminate prejudice and stereotypes in interpersonal relationships. Furthermore, it highlights the convergences or divergences that are evident in the bodies’ approaches to those obligations.

This chapter uses the Committee on the Elimination of Discrimination Against Women (CEDAW) as a case study to explore the extent to which the UN treaty bodies have embraced intersectionality in their examination of individual complaints. In many cases, the UN treaty body system allows human rights victims to seek justice for rights violations by submitting a human rights complaint to one of the treaty bodies. The ability to bring a complaint to an international body offers victims a chance at compensation, remedies that may prevent future violations, and an acknowledgment that the state violated their rights. Although the complaint process cannot bring back a family member who was, for example, murdered by representatives of the state, holding the government accountable for its actions can be a powerful remedy for many victims. This chapter probes for evidence of intersectional analysis in one Committee’s consideration of individual complaints. The Committee’s jurisprudence reveals that it is moving toward an intersectional approach, which will enhance available remedies and lead to stronger human rights protection.

Final Report on The UN Human Rights Committee and other Human Rights Treaty Bodies

The principle of non-refoulement is often described as the cornerstone of refugee law. It prohibits States from expelling people from their territories to States where their life or freedom would be threatened. The principle of non- refoulement is, however, not only enshrined in refugee law. The United Nations Human Rights Treaty Body System has developed a protection from refoulement that is considerably broader than the protection granted under international refugee law. It is also broader than the human rights protection provided by the ECtHR. This article will show that the UN Treaty Bodies’ approach to the principle of non-refoulement gives a much clearer framework for rejections of migrants at a State’s frontier.

Ever since the adoption of the Universal Declaration of Human Rights in 1948 there has been a debate on the issue of universality and cultural diversity. The UN human rights treaty bodies have an important role to play in ensuring a proper balance between safeguarding the universality of the rights, while at the same time leaving room for cultural particularities. This book examines how the UN treaty bodies, in particular the Human Rights Committee, the Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of Discrimination against Women, fulfil this role.

This chapter presents a practitioner’s view on the influence of political dynamics on the work of the United Nations human rights treaty bodies (UNTBs). These human rights monitoring mechanisms have gone through a process of expansion and transformation since the establishment of the first UN human rights treaty body in 1970. With ten UN treaty bodies, monitoring a range of human rights, through different mechanisms, the possibility for tensions between the treaty bodies and member States is always there. Most contentious seem to be individual communications where States are found in violation of a specific treaty norm. Other contentious issues concern so-called inherent powers of the UN treaty bodies, which some States contend have no basis in the respective treaties. This chapter analyzes the merits of the criticism raised about the politicization of the UN human rights mechanisms, namely the UNTBs, and the Human Rights Council and its Special Procedures.

This chapter sets out practice of the UN treaty bodies in cases against the Netherlands. The Human Rights Committee, which supervises compliance with the International Covenant on Civil and Political Rights, has to date dealt with seventy seven complaints against the Netherlands. The government argued that in its interpretation the European Court of Justice had taken into account the funded nature of the ABP pension and other supplementary pension schemes in several Member States. The Committee against Torture has dealt with fifteen cases against the Netherlands. The Committee on the Elimination of Racial Discrimination has dealt with three complaints against the Netherlands and in two of those found that breaches of the International Convention on the Elimination of All Forms of Racial Discrimination had occurred. Keywords: ABP pension; European Court of Justice; Human Rights Committee; Member States; Netherlands; Racial Discrimination; UN treaty bodies

The chapter addresses how international human rights monitoring institutions engage with the politics of resource allocation and mobilization at the domestic level in countries. More precisely, it enquires how UN Treaty Bodies, Special Procedures and the Universal Periodic Reviews address public spending in support of human rights implementation, and how the monitoring institutions focus on the related issue of taxation and revenue mobilization. It analyzes tendencies in expenditure and tax recommendations over time and how important general comments are in framing institutional recommendations. The chapter is based on a quantitative review of the recommendations of treaty bodies and their General Comments, those of the Special Rapporteurs, and the UPR. The analysis of the chapter focuses on three Treaty Bodies, the Committee on Economic, Social and Cultural Rights, the Committee on the Rights of the Child, and the Committee on the Elimination of Discrimination Against Women, and the respective General Comments of these committees.

This chapter focuses on two dimensions of human rights reform, namely reform of the UN Human Rights Commission and the UN Treaty Bodies. The UN World Conference on Human Rights in 1993 represents an international milestone for the new human rights agenda, its main focus being on implementation. The human rights mechanisms of the UN have had their share in these developments. UN institutions developed considerably in the aftermath of the Cold War and actively supported the creation of a culture of human rights. The Office of the High Commissioner for Human Rights (OHCHR) and other organizations have been running a number of workshops in order to provide tools for national institutions and NGOs on how to interact with Treaty Bodies. The chapter explores how the interaction between international and regional monitoring mechanisms and national levels can create a stronger and more dynamic protection regime. Keywords: Cold War; human rights mechanisms; OHCHR; UN Human Rights Commission; UN Treaty Bodies

Introduction UN treaty bodies constitute the main institutional vehicle for the application of international human rights law. Bodies such as the UN HRCtee are by no means the only international mechanisms that address issues of human rights protection. Indeed, bodies as diverse as the ILO and the World Bank employ special procedures dealing with human rights questions. International tribunals and courts, particularly the ICJ, are increasingly adjudicating cases that have a bearing on international human rights law. Yet, human rights treaty bodies fulfil a special role in that they are the only entities within the UN system that states have explicitly mandated to monitor compliance with their human rights treaty obligations. Treaty bodies fulfil a range of functions, from promotional activities to monitoring and adjudicating complaints. These tasks, which are taken for granted today, are the result of states’ willingness to vest treaty bodies with the mandate of monitoring compliance. This constituted a remarkable shift away from earlier notions of sovereignty in a system where states were, essentially, the sole authors, interpreters and enforcers of rights and obligations. What accounts for this change and why do states agree to be part of such regimes? This question, which has attracted considerable attention in recent years, poses a particular challenge because it does not seem to conform to the realist views that used to hold considerable sway in international relations, according to which states use institutions as a means to exercise power. Alternative theories emphasise states’ interests (enhancing reputation and avoiding sanctions) or point to ‘acculturation’. This denotes a process of interaction of various actors which generates a pull to build and join credible human rights mechanisms as part of an international order. Indeed, these mechanisms form part of broader international institution-building, particularly at the UN level. The development of UN treaty bodies has witnessed a steady growth after a slow beginning in which it took over twenty years and numerous debates to set up the first two, the Committee on the Elimination of Racial Discrimination (CERD) and the HRCtee.

While UN treaty bodies have sought to address forms of oppression resulting from the intersection of gender, race and/or disability through their practice, they rarely recognise the experience of groups at the intersection of other social categories. This article uses the lens of intersectionality to analyse the practice of UN treaty bodies in relation to the intersection of minority and refugee status. We argue that while minority-refugees have fled persecution connected to their minority status, UN treaty bodies have failed to appreciate the impact of their location at the intersection of persons belonging to minorities and refugees in host States on their right to preserve their cultural identity. By failing to address the distinct experience of minority-refugees, UN treaty bodies risk participating in their oppression. Further, we reveal that current practice not only has potentially negative consequences for minority-refugees – as both individuals and groups – and for the host society but may even undermine the ability of IHRL to achieve its overarching objectives.

There is no formal hierarchy between, or international rule of precedent applicable to, the three regional human rights systems and the eight UN Human Rights Treaty Bodies with active competence to entertain individual complaints. By scrutinising the practice of duplicative proceedings of UN Treaty Bodies (UNTBs), this article makes the argument that the res judicata and lis pendens principles have not prevented the UNTBs from reviewing cases previously examined by a regional human rights court. In doing so, the case is made that while the UNTBs usually defer to regional courts’ factual and legal findings when analyzing cases with the same parties, substantive rights, facts and events, judgments that apply the margin of appreciation doctrine are much more at risk of being revised and contradicted by UN Human Rights Treaty Bodies. Distinct opportunities for horizontal dialogue between UNTBs and regional human rights courts are thus opened.

The seven principal United Nations-sponsored human rights treaties stipulate that states parties submit periodic reports to the respective treaty monitoring bodies on their implementation of the treaty obligations. Following a report review, the treaty body in question issues a set of ‘Concluding Observations’ containing its collective assessment of the state's record and recommendations for enhanced implementation of the rights in question. This chapter analyzes the weaknesses of the current system of uncoordinated recommendations between the seven UN treaty bodies, and highlights the need for integration of the recommendations. Failure to do so could give rise to ‘clashes of approach’ and cases of ‘inconsistent or contradictory recommendations’. Integration of the approaches of the treaty bodies based on a human rights-based approach can enhance the structure and fulfilment of the obligations under the main human rights treaties, including the ICESCR, as well as the work of the respective Committees, including the ESCR Committee.