Human Rights Treaty Bodies Research Articles

Универсальный правозащитный механизм на страже сохранения или ревизии института семьи

The article attempts to comprehensively analyze the institution of family, which is enshrined in the Universal Declaration of Human Rights (UDHR) and in two International Covenants on Human Rights - the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which together with the UDHR form the International Bill of Human Rights. The article examines the views of relevant treaty bodies empowered to monitor the implementation of the International Covenants on Human Rights by States parties, represented by the Human Rights Committee and the Committee on Economic, Social and Cultural Rights in relation to the institution of the family, expressed by them in their general comments and related concluding observations on the periodic reports of States parties to the International Covenants. The opinions of the European Court of Human Rights and other human rights treaty bodies in relation to the institution of the family are also presented in comparative order. The article emphasizes that the preservation of the approach that was laid down in the institution of family in the relevant International Covenants on Human Rights, as well as deviations from it, which the author qualifies as ultra vires powers vested in the relevant human rights treaty bodies.

The State of the International Human Rights System—Normativity and Compliance: Introduction

AbstractThis introduction presents a special issue of the Journal of Human Rights Practice on the state of the international human rights system. It places the challenges and shortcomings of the 2020 Human Rights Treaty Body Review in the context of the broader discussion on human rights normativity and compliance. The unwillingness of member states to fulfil their budgetary commitments, as well as the ignorance with which some reform proposals were met, reflect a lack of understanding of the significance of legal procedures in the human rights treaty bodies. The main focus of reform efforts is to facilitate reporting obligations for states parties by simplifying procedures to make them more manageable for both states parties and treaty bodies. However, lack of compliance with human rights constitutes the severest shortcoming of international human rights protection today. Therefore, current reform ambitions risk losing sight of the rights holders and of actual human rights implementation on the ground. This fear explains the focus of this special issue on the normativity of human rights and compliance: treaty bodies play a continuous and crucial role for the normative force of human rights as well as their continuous development. They should be perceived as agents of social change and tools to turn rhetoric to action. At the same time, the normative meaning of human rights commitments and its (re-)construction depend on social practices in the states parties. After explaining the dialogical approach and framework of the special issue, the introduction provides an overview of individual contributions (articles and comments) and highlights the key messages of the human rights practitioners involved in the special issue against the background of the ongoing treaty body review.

The Human Rights Committee—Challenges and Prospects for Enhanced Effectiveness and Integration

AbstractAs one of the oldest and the most prominent of universal monitoring organs of quasi-judicial nature, the UN Human Rights Committee has greatly contributed to the development of the universal human rights regime. However, challenges remain. These relate particularly to a lack of implementation of the Committee’s decisions in national legal orders and to lack of efficiency in the work of the Committee. From a practitioner’s perspective, this article examines the Committee’s achievements and shortcomings with special regard to the reporting and individual complaint procedures. It considers the state of the Human Rights Treaty Body Review and analyses how the reforms undertaken in its context. The Committee’s cooperation with other human rights treaty bodies is also discussed and the advantages of closer cooperation are presented. The authors conclude that there is still a long way to go and against this background discuss perspectives of a world court of human rights.

Reservations to the Istanbul Convention and the Role of GREVIO: A Call for New Approach

ABSTRACT The question of whether the monitoring bodies have competence concerning reservations is at the centre of the discussion of reservations to human rights treaties that has occupied many international legal scholars over the last few decades. The Istanbul Convention’s treaty monitoring body, GREVIO, is the only human rights treaty monitoring body with a direct competence concerning reservations. However, as practice to date shows, it does not make much use of this power. This is a big disappointment considering all the efforts of other bodies in the past and the doctrinal positions of various scholars. The main aims of this article are threefold to: present GREVIO’s practice to date concerning reservations, provide a brief historical overview of how other human rights treaty bodies have approached their role concerning reservations, and finally, attempt to explain why GREVIO has abandoned a more proactive position on reservations.

LGBTQIA+ HUMAN RIGHTS: A COMPARATIVE ANALYSIS OF RIGHTS IN INDIA AND USA

Right to Equality and Non-discrimination are some of the fundamental international human rights, Sexual orientation and gender identity are among the forbidden grounds of discrimination under international human rights law, according to United Nations human rights treaty bodies. So, it becomes important for us to consider LGBTQ rights. This research paper conducts a comparative analysis of the rights available to individuals of the LGBTQ community in India and the United States. This included matrimonial rights, familial rights, the right to quality, and the right against non-discrimination. Furthermore, this paper will also go on to analyze the effect that the violation of such rights can have on the individuals of the LGBTQ community.

Difference Between the ICJ and the CERD Committee: A Comment on the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates) Case

Abstract In the Qatar v. UAE case, the Court reached, without giving much explanation, an interpretation different from that of the CERD Committee over the phrase “national origin” in the International Convention on the Elimination of All Forms of Racial Discrimination. This, in fact, marks a deviation from the Court’s previous case law. Through a close reading of the Court’s judgment and the Committee’s decision, this comment argues that their diverging interpretations bring to the surface the structural differences between these two institutions. These differences had been obscured in the Court’s jurisprudence, and a more principled approach towards human rights treaty bodies is needed for the Court in the future.

Nordic Migration Cases before the UN Treaty Bodies

Abstract The UN human rights treaty bodies have decided an extensive amount of complaints brought by asylum seekers and immigrants against the Nordic states. This development forms part of a larger shift in international accountability routes that have emerged from the uptake of migrants’ rights claims by human rights courts and treaty bodies. The article examines what this development engenders in both international and national contexts, using the Nordic litigation as a focal point. The first part posits that the litigation has played a significant role in developing international law. It further explains that the significant amount of these cases in the region, but also variance across states, partly comes down to the degree of strategic litigation and the design of national asylum systems. The second part examines what emerges from this oversight, and identifies four factors from which to understand these national contexts: the design of the asylum system; the question of ‘credibility’; existence of parallel jurisprudence from the European Court of Human Rights; and communicative and functional processes that exist beyond final merits decisions. Overall, attention to the aftermath of these – formally soft law – decisions reveals that they do have quasi-judicial effects in the national contexts.

Dublin III in Practice: Synthesizing a Framework for European Non-Refoulement Cases at the Human Rights Committee

Abstract The United Nations Human Rights Committee (‘Human Rights Committee’ or ‘the Committee’) is facing an influx of complaints from asylum seekers in the European Union who have had their claim assessed under the strict criteria of the EU’s Dublin Regulation. Many asylum seekers, among them survivors of horrific violence and struggling single mothers with children, are being forced to return to their first-point-of-entry countries, where they are unable to find jobs or housing and face months in poor detention conditions. While expert bodies have established factors that should be considered to decide whether required principles of non-refoulement have been violated in asylum cases, the Human Rights Committee has varied inequitably in its procedure to determine whether a violation has occurred. In this article, we offer an original synthesis of the Human Rights Committee’s jurisprudence governing non-refoulement and apply it in a novel way to the rules governing the Dublin Regulation. The article then presents a specific test the Committee can use to analyse Dublin non-refoulement cases. The use of the proposed framework not only ensures adherence to established legal principles, but also would result in consistent decision-making valuable to both the Committee and European asylum seekers who appeal their cases to the Committee. Given recent literature demonstrating that human rights treaty bodies have an important impact on human rights compliance globally, the proposed framework would allow the Human Rights Committee to play a constructive role in increasing human rights compliance in the current European refugee context.

Domestic Gatekeepers or International Enforcers? National Courts’ Engagement with Decisions of International Human Rights Courts and Treaty Bodies

Domestic Gatekeepers or International Enforcers? National Courts’ Engagement with Decisions of International Human Rights Courts and Treaty Bodies

An analysis of the contribution of the African human rights system to the understanding of the right to health

The right to health is one of the important rights guaranteed in international and regional human rights instruments. Over the years the content and nature of this right have evolved through the works of scholars and clarifications provided by human rights treaty bodies. Focusing on the work of the African Commission on Human and Peoples' Rights, this article assesses the contributions of the African human rights system towards the advancement of the right to health. It outlines some of the major achievements in terms of normative framework as exemplified by the provisions of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, the African Youth Charter and the Protocol to the African Charter on the Rights of Older Persons. In addition, it highlights the clarifications provided by the African Commission charged with interpreting the African Charter on Human and Peoples' Rights and the African Women's Protocol. These include the adoption of resolutions, General Comments, guidelines and important decisions which provide a nuanced understanding of the right to health in the African context. The article identifies challenges militating against the full enjoyment of the right to health, including sexual and reproductive health in the region, such as the slow ratification of important human rights instruments, the lack of political will for law reforms, the failure to timeously submit state reports and interference with the work of the African Commission. The article concludes by calling on African governments to exhibit political will in ensuring the effective implementation of the right to health at the national level.

NHRIs as Autonomous Human Rights Treaty Actors

What roles do National Human Rights Institutions (‘nhri s’) play in UN human rights treaties, and what is the normative basis of such roles? Although NHRIs are formally State organs, UN human rights treaty bodies have increasingly permitted them to participate in their procedures not as part of the State but in their own capacity as NHRIs. UN human rights treaty bodies have referred to the information and views submitted by nhri s even when such submissions did not conform to the positions taken by their States. In this sense, NHRIs are increasingly acquiring an autonomous status that is distinct from that of States under UN human rights treaties. Through a comprehensive and up- to- date examination of the practices of treaty bodies and the Global Alliance of National Human Rights Institutions and by employing the theoretical lens of ‘global legal pluralism’, this article shows that the autonomous status of NHRIs has a solid normative basis. It is the product of the cooperative relationship between UN human rights treaties and the ‘Paris Principles’, an autonomous legal order of, by, and for nhri s, under the overarching values and principles of human rights protection, democracy, and subsidiarity.

Access to health care for Venezuelan irregular migrants in Colombia: between constitutional adjudication and human rights law

ABSTRACT In the last six years, Colombia has received an exceptionally high number of incoming people on the move, fleeing from neighbouring Venezuela, including around 1 million Venezuelan nationals in an irregular situation. 1 Against this unique and challenging background, this article aims to ascertain the extent to which the jurisprudence of the Constitutional Court of Colombia and that of United Nations’ human rights treaty bodies and InterAmerican institutions are synergetic and supportive of the idea that the right to health must be equitably accessible for irregular migrants and subgroups of the same. The case law of this Court provides useful insights into both the difficulties of implementing ‘beyond minimalist’ approaches to the rights of irregular migrants in a middle-income country and the unusually influential but selective role of international human rights law and the comments of treaty bodies in its findings. For this case study, I also systematise applicable arguments of UN and InterAmerican human rights law and demonstrate that they are normative frameworks capable of pitching the right to health of irregular migrants beyond access to urgent treatment by integrating arguments based on core rights and vulnerability into a primary health care approach to public health that ‘brings promotion and prevention, cure and care together’. 2

Assessing the links between human rights and global tobacco control through statements made on global fora

BackgroundIncreasingly, international health bodies frame public health measures, including tobacco control, in the context of human rights (HR). It is unclear how prevalent is the connection between human rights and tobacco control within global health governance. This paper describes the inclusion of HR in tobacco control governance, and the inclusion of tobacco control in HR treaty oversight. We depict the current reach of HR’s normative influence in framing the tobacco epidemic in global, regional, and country-specific contexts.MethodsWe reviewed documents (agenda, reports) from 2010 to 2019 from the World Health Assembly (WHA); the WHO Western Pacific Regional Committee Meetings (RCM); the WHO Framework Convention on Tobacco Control (WHO FCTC) Conferences of the Parties (COP); and documents provided by Pacific Island Countries party to, or by committees overseeing, HR treaties. We purposively selected the Western Pacific Region, and Pacific Island Countries specifically, to represent countries of varying populations, capacities, and governance.ResultsTobacco control and HR are infrequently mentioned together in the WHAs, and primarily in only one COP. Tobacco control is mentioned in 47 HR treaty committee documents for Pacific Island Countries, mostly under the Convention of the Rights of the Child recognizing or calling for ratification of the WHO FCTC. HR and tobacco control are connected in WHO Western Pacific RCM, particularly through their two most-recent action plans adopted by respective RCMs.DiscussionTobacco control as a HR concern is gaining traction within HR treaty bodies, at least with respect to children’s health in the Western Pacific Region.ConclusionGlobally, HR is just emerging as an influence in global health governance for tobacco discussions. Within the Western Pacific Region however tobacco control is seen by some authorities as a HR issue. Similarly, to HR experts, tobacco control is becoming important to how Pacific Island Countries fulfill their treaty obligations, suggesting tobacco control advocates might explore these mechanisms to further influence the development of strong tobacco control measures to implement the WHO FCTC.

Human Rights Derogations: Sourcing and Analysing the Concluding Observations of the International Human Rights Treaty Bodies

Human Rights Derogations: Sourcing and Analysing the Concluding Observations of the International Human Rights Treaty Bodies

Localizing Rights Compliance: The Case for Cities as "Shadow Reporters" at International Human Rights Treaty Bodies

"Shadow reports" by nongovernmental organizations (NGOs) and national human rights institutions (NHRIs) are commonplace within the international human rights treaty monitoring process. They became so for a simple reason: shadow reports improve the reporting process by providing useful information. This article contends that shadow reports from cities would do the same. Using the example of reports sent by the City of Berkeley, California, this article advocates for institutionalizing city shadow reporting because such reports can provide frontline information and help socialize cities into human rights compliance, even (and perhaps especially) when at odds with their national government.

Universal human rights treaty bodies and their place among international institutions

The article is devoted to the study of the constitutional principle of the constitutional principle of the freedom of contract for contractual relations between energy distribution organizations and consumers of electric energy in retail electricity markets. Doctrinal approaches to understanding constitutional principles, their relationship and mutual influence, which are the basis of the study of the question posed in the study, are considered. The authors' conclusions are based on analysis: legislation on electricity, in terms of regulation of legal relations in retail electricity markets; Energy distribution regimes; the design of power supply contracts and electricity purchases; imperative provisions of the electricity legislation in contractual relations. As a result, it is concluded that the doctrinal principles of contract freedom in retail electricity markets, when contracting the purchase and sale of electricity and energy supply, operate in two of its manifestations, both in full and taking into account the necessary restrictions (features, exemptions) related, first of all, to the constitutional principle of the social state.

Interrogating Our Self-Image as a Champion of Gender Equality

Australia’s current level of engagement with the UN human rights system is perhaps unprecedented. We have two representatives on human rights treaty bodies and two experts serving on mandates of the Human Rights Council. All four of these individuals are women and on the world stage, we have presented ourselves as a leader in advancing gender equality. This paper interrogates this self-image by looking at our international engagement and considering the way it is reflected at home.

Human Rights Derogations: Sourcing and Analysing the Concluding Observations of the International Human Rights Treaty Bodies

Human Rights Derogations: Sourcing and Analysing the Concluding Observations of the International Human Rights Treaty Bodies

South Africa’s Engagement with International Human Rights Law

The commitment to human rights is the cornerstone of the Constitution of the Republic of South Africa, 1996. However, South Africa’s human rights record in the international community often stands in stark contrast to its constitutional commitment to human rights. In both international and regional contexts, South Africa has demonstrated an inconsistent approach to foreign policy that is often guided more by political considerations than by a principled commitment to advancing human rights. This lecture provides an overview of South Africa’s engagement with international human rights law in the constitutional era and evaluates its human rights record in the international arena in a diverse range of fields. These fields include South Africa’s record of human rights protection in peace and security operations on the African continent; its record as a member of the UN Security Council and Human Rights Council; the assessment of its performance by UN human rights treaty bodies; and its record in respect of the Covid-19 pandemic, international criminal justice, the death penalty, and the arms trade. The lecture draws on Judge Pillay’s extensive experience in international law, including as President of the International Criminal Tribunal for Rwanda, Judge at the International Criminal Court in The Hague and former UN High Commissioner for Human Rights.

Nordic Migration Cases before the UN Treaty Bodies: Pathways of International Accountability?

The UN human rights treaty bodies have decided an extensive amount of complaints brought by asylum seekers and immigrants against the Nordic states. This development forms part of a larger shift in international accountability routes that have emerged from the uptake of migrants’ rights claims by human rights courts and treaty bodies. The article examines what this development engenders in both international and national contexts, using the Nordic litigation as a focal point. The first part posits that the litigation has played a significant role in developing international law. It further explains that the significant amount of these cases in the region, but also variance across states, partly comes down to the degree of strategic litigation and the design of national asylum systems. The second part examines what emerges from this oversight, and identifies four factors from which to understand these national contexts: the design of the asylum system; the question of ‘credibility’; existence of parallel jurisprudence from the European Court of Human Rights; and communicative and functional processes that exist beyond final merits decisions. Overall, attention to the aftermath of these - formally soft law - decisions reveals that they do have quasi-judicial effects in the national contexts.