Human Rights Treaty Bodies Research Articles

Inter-State Communications before UN Human Rights Treaty Bodies: Testing the Waters for Collective Communications

Abstract The awakening of inter-state communications with the first ever three cases before the Committee on the Elimination of Racial Discrimination in 2018 has inspired new avenues of research about their potential and shortfalls. This article opens a new line of exploration, considering the mechanism’s potential as an avenue for collective action at a time when many States are responding to violations of international law, even when not directly affected by those violations. Those responses have included massive third-party interventions (Ukraine v Russia), and the initiation of proceedings before the icj by States not directly injured (The Gambia v Myanmar, Canada and the Netherlands v Syrian Arab Republic, South Africa v Israel). This article argues that enabling collective inter-state communications before UN treaty bodies could strengthen the mechanism as an avenue for treaty compliance and the protection of human rights, and for amplifying sovereign voices as part of peaceful dispute settlement processes.

Contestation from Within: Norm Dynamics and the Crisis of the Liberal International Order

Abstract To what extent is the current “crisis of the liberal international order” a result of features of the order itself? In this article, we focus on the role of formal and informal hierarchies by comparing two cases of contestation of core norms of the liberal international order: The African states and the African Union contesting the duty to prosecute institutionalized in the International Criminal Court and the United States contesting the international prohibition of torture. The African contestation of the duty to prosecute became radicalized and diffused, leading to challenges to the broader international criminal accountability regime. The US contestation of the prohibition of torture did not spread, leaving the broader human rights regime untouched. We argue that the formal and informal hierarchies in both orders shaped their contestation dynamics more than their formal institutionalization. While the duty to prosecute is situated in a highly hierarchical setting that fueled frustration and contestation, the contestation of the prohibition of torture evolved in the less hierarchical setting of the human rights treaty bodies, which helped prevent contestation from spreading.

The Impact of the Pandemic on Reproductive Autonomy and Gender Equality: Perspectives from the Sustainable Development Agenda

Abstract The COVID-19 pandemic had mixed effects on reproductive autonomy. While some governments excluded reproductive health care from the category of “essential” services that could be provided during shutdown orders, the pandemic also gave researchers an opportunity to study the efficacy and safety of telemedicine abortion and self-managed abortion. Feminist organizations around the world have also organized to provide cross-border services and far more women now know how to obtain abortion medications. This can be empowering, not only during a public emergency but also when legal rights are suddenly taken away. Unfortunately, for those women who require surgical abortion care, overly strict laws can still lead to tragic outcomes. This is why it is important that human rights treaty bodies and courts are gradually recognizing a right to reproductive autonomy under regional and international human rights law. Hopefully, even conservative governments can be persuaded to provide compassionate exceptions in their laws regulating abortion. A more compassionate approach to the subject of abortion would promote both maternal health and gender equality, helping governments to achieve the ambitious targets in the Sustainable Development Goals.

МІЖНАРОДНІ СТАНДАРТИ ТА НАЦІОНАЛЬНЕ ЗАКОНОДАВСТВО У СФЕРІ ЗАПОБІГАННЯ ТА ПРОТИДІЇ ГЕНДЕРНО ОБУМОВЛЕНОМУ НАСИЛЬСТВУ: ПРОБЛЕМНИЙ АНАЛІЗ

This study aims to analyse the international legal framework for cooperation among states in combating gender-based violence on the current stage of international law development. The article explores approaches to addressing the issues formulated to implement the provisions of key international legal documents on combating gender-based violence adopted at both universal and regional levels. By synthesizing existing scholarly materials, the degree and level of theoretical elaboration of the problem of gender-based violence within international law were determined, thus addressing key international legal issues regulating gender-based violence. The main international treaties, resolutions, decisions of international organizations, and governmental decisions aimed at ensuring women's equal rights were analysed, with special attention given to the analysis of the Convention on the Elimination of All Forms of Discrimination Against Women. The correlation and mutual influence of international and national law on the status of women in contemporary society were traced. The institution of women's rights protection within international law was reviewed, identifying its functions, tasks, and methods. The activities of major structures within the UN system (including specialized agencies such as WHO, UNFPA, etc.), regional intergovernmental, and non-governmental organizations in ensuring gender equality were considered. It is recommended, based on the provisions of the Council of Europe Convention on preventing and combating violence against women and domestic violence, which has regional application, taking into account its advantages and disadvantages, as well as the implementation practice, the development of a universal convention on combating violence against women is proposed, which will contribute to the standardization of approaches of relevant human rights treaty bodies within the UN system on this issue. Keywords: international law, international treaties, Istanbul Convention, gender-based violence, state positive obligations, discrimination.

Integrating international policy standards in the implementation of postnatal care: a rapid review

IntroductionInternational legal and political documents can assist policy-makers and programme managers in countries to create an enabling environment to promote maternal and newborn health. This review aimed to map and...

How Expert Committees Become Group Agents: Self-Legitimation in the Committee on the Rights of Persons with Disabilities

Abstract The UN human rights treaty bodies—groups of experts tasked with monitoring how states implement international human rights conventions—are increasingly portrayed as powerful collective entities with agency. This article focuses on one mechanism that helps collectives of individuals become group agents, namely internal self-legitimation. By internal self-legitimation, we mean practices such as narratives and rituals enacted by a group that ascribe legitimacy to it in the eyes of its members and are key to building common identification among them. We explore how self-legitimation facilitates group agency on the basis of a case study on the Committee on the Rights of Persons with Disabilities (CRPD), obtaining empirical evidence for the study from content analysis of CRPD documents and interviews with former and present members. We show that specific legitimation narratives—related to the moral value of the committee’s task and the moral integrity of its members, the fairness of the CRPD’s procedures, and the committee’s association with other presumably legitimate institutions—facilitated identity-building and helped the CRPD to develop the characteristics of a group agent and take decisions. Finally, we explore the conditions on which the findings might be applicable to other human rights treaty bodies.

The trials of judge Garzón and the enforceability of decisions by human rights treaty bodies in Spain

ABSTRACT In 2021, the UN Human Rights Committee (HRC) held Spain responsible for violations of Articles 14(1), 14(5) and 15 (1) of the ICCPR in the Garzón v Spain case. The purposes of this article are three-fold. Firstly, it provides an analysis of the ‘Francoism’ case and the ‘Gürtel’ case, the two trials held by the Spanish Supreme Court (SSC) against Judge Garzón, which the HRC declared were ‘arbitrary and did not comply with the principles of judicial independence and impartiality’, and an assessment of their political and legal aftermaths. Secondly, it assesses the dim prospects for Spain complying with the HRC’s views on the Garzón case by providing an updated and comprehensive statistical account of Spain’s extremely low record of compliance with previous HRC’s decisions. Thirdly, it provides an analysis of the new opportunities for judicial enforceability in cases of non-compliance by Spain with the views of the HRC in the wake of the SSC’s landmark judgement on the González Carreño v. Spain case and subsequent case law. The conclusion considers the enhanced potential role of domestic courts in fostering the enforceability of decisions by quasi-adjudicatory human rights bodies both in Spain and in the light of the Spanish experience.

Beyond Non-bindingness: States’ Implementation of UN Human Rights Treaties Bodies’ Concluding Observations

ABSTRACT Insufficient scholarly attention has been given to how UN human rights treaty bodies can induce states to implement concluding observations (COBs). This is because previous studies tend to underestimate the treaty bodies as weak, and instead focus on domestic factors. A case study of the Japanese implementation of treaty bodies’ COBs, however, reveals that domestic mobilization does not always succeed in changing government policies because of Japanese authorities’ inadequate understanding of international human rights law in areas such as gender equality and the prohibition of hate speech. Exploring treaty bodies’ role in inducing such states’ implementation of COBs is therefore crucial. To tackle this, this paper applies the theory of Goodman and Jinks, and reveals that the treaty bodies’ design is aimed primarily at persuading rather than acculturating states. If acculturation is incorporated into their design, it follows that treaty bodies should coordinate with the Human Rights Council, and that the Human Rights Council should follow up COBs in the Universal Periodic Review (UPR). Because ‘enforcement’ of COBs by the UPR could undermine treaty bodies’ work, this paper suggests a modest solution: that the UPR should cover the concerns expressed in COBs.

The Role of the Practices of the International and Regional Human Rights Treaty Bodies in the Development and Codification of the Rules of International Law – The Reservation to Treaties as a Model

Although the rules contained in the three Vienna Conventions of 1969, 1978, and 1986 still constitute the framework for practice in the field of reservation to treaties, the development of the international community and with it the international system for the protection of human rights revealed a lack of clarity and some gaps in the Vienna regime of reservation which cannot be overlooked. Based on this, the European Court of Human Rights took the initiative and provided solutions to the practical difficulties imposed by previous conventions as well as developed new practices. Despite the opposition of several actors states to some of these practices, the great support given to the European monitoring bodies by the Inter-American Court of Human Rights and the United Nations human rights treaty bodies, in addition to the clarifications provided by the Human Rights Committee (HRC) concerning ‘severability’ theory to the International Law Commission (ILC), led to established practices of these bodies being codified. Codification took the form of guidelines in the ‘Guide to Practice on Reservations to Treaties’ which was adopted at the 63rd session of the ILC in 2011 after extensive study and debates, lasting nearly two decades, between members of the International Law Commission and within the Sixth Committee of the General Assembly.

UN Human Rights Treaty Bodies Talking to Domestic Adjudicators Through Their Quasi-judicial Work: An Examination of CERD and CEDAW

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).

Advisory Opinion on Obligations of States in Respect of Climate Change: Potential Contribution of Human Rights Bodies

Abstract On 29 March 2023, the UN General Assembly adopted a resolution requesting an advisory opinion from the International Court of Justice on the obligations of states in respect of climate change. The icj’s opinion, if given, will be the first of an international court determining the elements of human rights obligations in the context of climate change. These issues have already been grappled with by UN human rights treaty bodies. I argue that the icj is entitled to take account of these jurisprudential developments, and should do so.

Social Pressure in the International Human Rights Regime: Why States Withdraw Treaty Reservations

AbstractStates often use reservations to modify their treaty obligations. Prior research demonstrates why states enter reservations and why states object to reservations, but little work explains why states withdraw them. We argue that states withdraw reservations in response to international social pressure. Using novel data on reservations and reservation withdrawals for the nine core international human rights treaties, our analyses reveal two factors that compel states to withdraw reservations: (1) pressure from peer states and (2) pressure from human rights treaty bodies conducting periodic reviews. While previous work emphasizes domestic factors, our research shows that the international community encourages states to withdraw reservations and strengthen their commitments to human rights and international law.

The power of the Paris Agreement in international climate litigation

AbstractClimate litigation has reached the international level with several requests for advisory opinions from international courts and tribunals, and human rights treaty bodies addressing climate change‐related human rights violations. The Paris Agreement will likely be relevant in many of these and other cases to come, whether directly in disputes about its application or interpretation, or indirectly in informing the interpretation of other international agreements, such as the European Convention on Human Rights (ECHR) or the United Nations Convention on the Law of the Sea (UNCLOS). It could also inform the due diligence standard contained in customary international environmental law. This article first examines normative elements of the Paris Agreement that may become relevant in the interpretation of other international norms. It then identifies some potential entry points of legal influence of these elements in the interpretation and application of other international law, especially the ECHR and UNCLOS. The article argues that the legal influence of the Agreement goes above and beyond the ‘legal fold’ in which it was adopted and can inform the interpretation of other international treaties and norms. ‘Paris‐aligned’ interpretation, taking into account the diligence standards contained in the Agreement, could impact on the contemporary understanding of international law more generally. Such interpretation might be necessary to avoid undermining the relevance of the Agreement. Importantly, it suggests that Paris‐aligned interpretation of other international treaties can provide a positive feedback loop towards effective implementation of, and compliance with, the Paris Agreement. Eventually, such Paris alignment may enhance legal consistency between diverse parts of international law and break down fragmented silos.

Human Rights and Justice for All: Demanding Dignity in the United States and Around the World by Carrie Booth Walling

Reviewed by: Human Rights and Justice for All: Demanding Dignity in the United States and Around the World by Carrie Booth Walling Rebecca Sanders (bio) Carrie Booth Walling, Human Rights and Justice for All: Demanding Dignity in the United States and Around the World (Routledge 2022), ISBN 9780367902124, 194 pages. Carrie Booth Walling’s Human Rights and Justice for All: Demanding Dignity in the United States and Around the World provides an accessible and comprehensive introduction to international human rights. Geared primarily towards university students, but also useful for scholars, professionals, and activists seeking to orient themselves, the book offers six thematic chapters and a human rights advocacy toolkit. Walling frames the pursuit of human rights as an active political project and guides readers through major issue areas, highlighting human rights deficits and violations, relevant international legal standards, and activist campaigns for change. Interspersed throughout the text, Walling profiles a diverse range of human rights campaigners, both widely and lesser known (e.g. Yazidi activist Nadia Murad, Indigenous Mexican Otomi-Toltec climate activist Xiye Bastida, and forensic physician Dr. Şebnem Korur Fincancı), as well as several human rights campaigns and initiatives (e.g. the UN’s Free and Equal Campaign for LGBTI rights, the Syrian White Helmets’ humanitarian rescue mission, and the Coalition of Immokalee Workers’ farmworker advocacy in Florida), giving a face to human rights advocacy. This effort to continually link broad human rights principles back to the [End Page 352] people and processes that demand and implement rights, or as Walling frames it, the lived experience of human rights, is one of the major strengths of the book. The thematic chapters introduce readers to inter-related human rights challenges and then provide in depth illustrative case studies from around the world, all of which are well-documented in thorough endnotes. For instance, Chapter 2 on equality and non-discrimination examines systemic anti-Black racism in the US criminal justice system and Chinese repression and forced assimilation of the Muslim Uyghur ethnic minority under the guise of counterterrorism. Chapter 3 on the interdependence of human rights invokes Michael Goodhart’s “negative interdependence” framework to explore the intersections of class, racial, and political deprivations and exclusions that fueled the Flint, Michigan water crisis. Later, the chapter shifts to review the Islamic State’s sexual violence against Yazidi women and girls, examining overlapping vectors of gendered, religious, and ethnic insecurity. International crimes including genocide, crimes against humanity, and war crimes are analyzed in Chapter 4, which covers a range of cases and developments including the Rwandan genocide, the development of the Responsibility to Protect doctrine, RUF atrocities in Sierra Leone, and grotesque war crimes in Syria. Chapter 5 on justice and reconciliation explores a variety of models of transitional justice including trials, truth commissions, apologies, memorialization, and reparations and introduces readers to concepts of retributive and restorative justices. Case studies include post-dictatorship trials in Argentina, the post-apartheid Truth and Reconciliation Commission in South Africa, and less conventionally, the Greensboro Truth and Reconciliation Commission—an unofficial community-led initiative to shed light on the 1979 massacre of anti-racist activists perpetrated by white supremacists in Greensboro, North Carolina. This latter case, along with aforementioned case studies on US criminal justice and the Flint water crisis, make the text especially useful for American students, who often struggle to critically connect domestic politics with international human rights challenges. The final two chapters examine mechanisms of human rights adoption, monitoring, and implementation. Chapter 6 reviews patterns and practices of civil society mobilization and the dynamics of Margaret Keck and Kathryn Sikkink’s “transnational advocacy networks,” interspersed with numerous examples such as the work of the Madres de Plaza de Mayo or Human Rights Watch. The chapter goes on to explain the institutional international human rights machinery including the UN Office of the High Commissioner for Human Rights, the Human Rights Council, Special Procedures, and Treaty Bodies. Students can also download a supplemental seven-page file from the Routledge website which includes a list of international and regional treaties and legal instruments, trials, tribunals, and investigative bodies, and a range of human rights non-governmental organizations and journals, many of which include direct hyperlinks...

Views adopted by the Committee under Art. 5(4) of the Optional Protocol, concerning Communication No. 3624/2019 (U.N.H.R. Committee)

On September 22, 2022, the Human Rights Committee (HRC) published its views in the communication of Daniel Billy et al. v. Australia, originally submitted in May 2019. Although not the first case before human rights treaty bodies on matters relevant to climate change, it is the first time the Human Rights Committee has found a state party to the International Covenant on Civil and Political Rights (ICCPR) in breach of its obligations under the ICCPR for failure to take mitigation and adaptation measures to combat the effects of climate change. In doing so, it made a number of comments on both procedural and substantive issues, which may well pave the way for future action.

A Room Full of ‘Views’: Introducing a New Dataset to Explore Compliance with the Decisions of the UN Human Rights Treaty Bodies’ Individual Complaints Procedures

Quantitative research into the effectiveness of the UN human rights treaty bodies (UNTBs) in eliciting remedial responses from states is impeded by a lack of usable data on how states respond to their decisions. The new Treaty Body Views Dataset (TBVD) aims to fill this gap. It comprises details on all published decisions in individual complaints cases issued by the UNTBs between 1979 and 2019 and matches these with information on their state of compliance. The TBVD can be used for research on the activities of the treaty bodies, the nature of the decisions themselves, or state behavior following a decision. An empirical application illustrates how the TBVD can advance knowledge about the factors that correlate with compliance with adverse UNTB decisions. Results show that the likelihood of implementation hinges critically on decision-level characteristics, and reveal differences and similarities between compliance with UNTB decisions and regional human rights court judgments.

Defer or Revise? Horizontal Dialogue Between UN Treaty Bodies and Regional Human Rights Courts in Duplicative Legal Proceedings

Abstract 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.

Introduction to Symposium on UN Recognition of the Human Right to a Healthy Environment

In July 2022, the United Nations General Assembly adopted a resolution recognizing the human right to a clean, healthy, and sustainable environment. Its proponents hope that the resolution will catalyze further action, but many of the states voting for it expressed the view that it has no legal effect in itself. Will UN recognition of this right nevertheless change international law? If so, how? This symposium brings together the perspectives of six distinguished scholars on this question. Philip Alston and Carmen Gonzalez examine how recognition may change our understanding of human rights law; Hélène Tigroudja and Maria Antonia Tigre analyze its impact on the burgeoning environmental jurisprudence of the UN human rights treaty bodies and the Inter-American Court of Human Rights; Rosemary Mwanza explores how the right may affect parallel efforts to codify the crime of ecocide; and Louis Kotzé concludes by arguing that the right still falls short of the transformational shift necessary to recognize and protect the rights of nature and of future generations. Before describing their contributions in more detail, this introduction reviews the background of the resolution and describes its main provisions.

From the “Green Turn” to the Recognition of an Autonomous Right to a Healthy Environment: Achievements and Challenges in the Practice of UN Treaty Bodies

Since the end of the 2010s, some of the UN human rights treaty bodies have affirmed and enhanced states’ obligations in relation to the environment. This “green turn,” deeply influenced by the jurisprudence of the regional human rights tribunals and the work of UN Special Procedures, raises the question of the potential recognition of an autonomous right to a healthy environment—that is, a free-standing right that is not primarily derived from existing human rights. The claim of this essay is that in the absence of a clear mandate from states to the treaty bodies to monitor the implementation of the right, its symbolic affirmation will have only limited impact. Inspired by the discussions at the Council of Europe on the adoption of a new Protocol to the European Convention of Human Rights, states at the UN level should go further and work toward a binding protocol. However, this raises the difficult issue of connecting the right to civil and political rights, to economic, social, and cultural rights, or to a specific instrument such as the Convention on the Rights of the Child. Ultimately, this essay reflects the shortcomings of the binary approach separating human rights into hermetic categories.

UN Human Rights Treaty Bodies Talking to Domestic Adjudicators Through Their Quasi-Judicial Work: An Examination of CERD and CEDAW

UN Human Rights Treaty Bodies Talking to Domestic Adjudicators Through Their Quasi-Judicial Work: An Examination of CERD and CEDAW