Human Rights Treaty Monitoring Bodies Research Articles

The Normative Value of Human Rights Treaty Bodies’ Interpretations at the International Court of Justice

Although the International Court of Justice (ICJ) is not a human rights court, it has recently addressed human rights issues, which has prompted interaction with the opinions of human rights mechanisms. This article will analyze the normative value of human rights treaty monitoring bodies’ interpretations recognized by the ICJ in three cases of its jurisprudence: the Wall Advisory Opinion, the case of Ahmadou Sadio Diallo, and the case of Qatar v. the United Arab Emirates. This analysis indicates that the ICJ has ascribed great normative weight to these interpretations, but it has been reluctant to adopt their views without conducting its own interpretative assessment of the norms. In its most recent case, the ICJ took an approach that completely departs from the interpretation adopted by the relevant treaty body. This article argues that such a position must be considered in light of the growing criticism that treaty bodies are facing about the quality of their reasonings and command of general international law. Accordingly, treaty bodies could enhance their legitimacy by learning from the ICJ’s approach to treaty interpretation, and in addition, could take advantage of the positive aspects of their non-binding character to develop meta-juridical discussions.

Juxtaposing emerging community laws and international human rights jurisprudence on the protection of women and girls from harmful practices in Malawi

In recent years, community laws to address harmful practices affecting women and girls in rural Malawi have been forming under the leadership of traditional authorities (chiefs), plural justice system actors who usually are suspected by international human rights law and jurisprudence of being on the side of women's rights violations. Yet, being community engineered, the community laws have some potential to practically protect women and girls from harmful practices. Taking off from a 'norm internalisation' conceptual footing, this article closely examines how the phenomenon of community laws sits with the expectations of international human rights law and jurisprudence on measures that states ought to take to internalise norms protecting women and girls from harmful practices. The article establishes that international human rights law and jurisprudence is saturated with calls for states to prioritise formal and macro-level measures to address harmful practices, although latest jurisprudence at both United Nations and African Union levels has cautiously begun to also recognise the role of plural justice systems. The article argues that it is high time that the human rights treaty-monitoring bodies started to critically re-examine the high insistence on formal measures, given that the community laws, which are also internalising the norm protecting women from harmful practices, are manifesting at the level of chiefs' jurisdictions.

International migrants' right to sexual and reproductive health care.

International migration puts people's sexual and reproductive health (SRH), particularly those of women and children, at increased risk. However, many international migrants are denied access to timely and adequate SRH information, goods, and services by governments and/or service providers. This article reviews relevant international human rights treaties to argue that the barriers faced by migrants in accessing SRH care constitute violations of international law. It is well established that migrants are guaranteed access to SRH care as a part of their right to health, as well as the rights enjoyed by vulnerable populations. Increasingly, hindrance of migrants' access to SRH care is also recognized as a threat to their rights to life and equality with non-migrants. The case of Toussaint v Canada illustrates how governments may be held accountable by human rights treaty monitoring bodies when they fail to respect and fulfill migrants' right to SRH care.

"Correlation between UN human rights treaty monitoring bodies and domestic courts; An analytical overview in respect of Bangladesh"

"Correlation between UN human rights treaty monitoring bodies and domestic courts; An analytical overview in respect of Bangladesh"

Can International Human Rights Law Smash the Patriarchy? A Review of ‘Patriarchy’ According to United Nations Treaty Bodies and Special Procedures

This article interrogates whether and how the concept of ‘patriarchy’ is used by UN human rights treaty monitoring bodies (treaty bodies) and special procedures to interpret state obligations to respect and ensure women’s human rights. There are two key points that arise out of this study: first, that several treaty bodies and special procedures purposely and consistently use the concept of ‘patriarchy’ when discussing women’s human rights, and second, that although not all treaty bodies and special procedures have referred to the terms ‘patriarchy’ or ‘patriarchal’, an examination of those that have reveals a marked difference in how the terms are used by treaty bodies when compared with special procedures. While treaty bodies render the meaning of ‘patriarchy’ as being synonymous with certain harmful practices, such as female-genital mutilation (FGM), special procedures utilise ‘patriarchy’ as a system of power, permeating every facet of society. In this article I will argue that the current state of dissonance between the understandings of ‘patriarchy’ by treaty bodies and special procedures creates an unnecessary ambiguity that does nothing to advance gender equality. Furthermore, utilising a nuanced understanding of patriarchy, as articulated by intersectional and anti-essentialist feminist scholars, would potentially equip treaty bodies and special procedures for more meaningful interpretation of rights themselves, and greater protection of women’s human rights.

Giving Due Consideration: A Normative Pathway between UN Human Rights Treaty Monitoring Bodies and Domestic Courts

This chapter analyses normative pathways that guide the deliberative space involving UN human rights treaty monitoring bodies and domestic courts. Judges vary in terms of their degree of engagement with treaty body findings. This chapter highlights that international law itself provides a set of justifications that sustain varied modes of judicial engagement. One of such justifications pertains to an obligation to consider the specific findings of treaty monitoring bodies. Before domestic courts, explicit reference to such an obligation is rare. Yet normative variations of the obligation to consider have guided domestic courts’ engagement to treaty body findings. The duty to consider and its variations may not create robust normative paths. Nevertheless, they arguably pave the way for a sustainable and forward-looking deliberative space by creating the opportunities for learning and self-reflection for both the monitoring bodies and domestic courts.

When Global Becomes Municipal: Cities Internalizing International Human Rights Law

International human rights law is most efficacious when it is both incorporated into domestic law and translated into local contexts. Yet, cities as rights implementers have received little scholarly attention. This paper explores municipal internalization of international human rights law through examination of San Francisco and Los Angeles’s binding ordinances implementing the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The research demonstrates that municipal ordinances represent robust, alternative mechanisms to actualize human rights to large urban constituencies. Nevertheless, sub-national internalization of international law is theoretically distinct. Not all cities have substantial federated authority to act on a broad array of rights issues, and even with such authority, the scope of issues is delimited. Cities are also legally, and increasingly ideationally, isolated from the human rights treaty monitoring bodies, which means that accountability mechanisms are underdeveloped, and that the ordinances may evolve apart from international developments and understandings.

The Legal Status of Decisions by Human Rights Treaty Bodies: International Supervision, Authoritative Interpretations or mission éducatrice?

Academic analysis of pronouncements of human rights treaty monitoring bodies has tended to focus on their contribution to the promotion of human rights in domestic jurisdictions, particularly to convey the desire of scholars to see more use of these pronouncements by domestic courts. Comparatively little attention has been paid to the issue of their legal status in light of the supervisory function of human rights monitoring bodies. The following paper focuses not so much on the use of such pronouncements by national bodies, but rather on their status according to the applicable rules of international law. Starting with an analysis of a few recent cases by national courts, which commented on the legal value of the work of these bodies, the paper then challenges two recurring arguments in the legal scholarship: their equation to judicial bodies, and the existence of a procedural obligation on States to consider their authoritative views. Next, it focuses on the interpretive weight of the pronouncements of these treaty bodies in international law, and, accordingly, in national jurisdictions. The paper argues that the alleged existence of a general procedural obligation on States to consider the pronouncements of human rights treaty monitoring bodies is controversial, and that their work does not have a specific, or privileged, legal position in defining the ordinary meaning of a treaty. The conclusions point out that supervisory bodies have a specific and important role in the international legal order, different from that of courts, which bears preserving.

Building and Applying a Human Rights-Based Model for Migrant Integration Policy

AbstractThe approach of public bodies towards migrant populations is often framed in terms of ‘migrant integration’. However, domestic integration policy and practice often come up short in terms of ensuring equal access to rights such as education, employment and housing for migrants. In this article, we discuss a variety of approaches to defining and measuring integration and, drawing on the concluding observations of a number of UN human rights treaty monitoring bodies, argue in favour of a model of integration based on international human rights law. Indicators derived from this model are used to assess the extent to which policymaking in the public sector in Ireland is informed by human rights. Finally, it is suggested that the methodology used in this study could be applied outside the sphere of immigration and integration to other areas of public policy which directly affect individuals’ human rights—from housing policy, to the provision of disability services, to early education and other important domains.

María de los Ángeles González Carreño v. Ministry of Justice

The ruling of the Spanish Supreme Court in Judgment No. 1263/2018, recognizing, for the first time, the binding character of the Views of the Committee on the Elimination of Discrimination against Women (CEDAW Committee), augmented the normative authority of the Views of the human rights treaty monitoring body, not only at the domestic level, but also within the international legal sphere. In the Judgment, the Spanish highest court held that the government must comply with the Views of the CEDAW Committee as a matter of the state's constitutional mandate as well as its international obligations. The Court's interpretation in this case meets the expectation of human rights treaty monitoring bodies that states are obligated to respond to their Views concerning individual communications, despite some states parties’ claims to the contrary.

The Legal Status of Decisions by Human Rights Treaty Bodies: Authoritative Interpretations or <i>mission éducatrice?</i>

Academic analysis of pronouncements of human rights treaty monitoring bodies has tended to focus on their contribution to the promotion of human rights in domestic jurisdictions, particularly to convey the desire of scholars to see more use of these pronouncements by domestic courts. Comparatively little attention has been paid to the issue of their legal status in light of the supervisory function of human rights monitoring bodies. The following paper starts with a thorough analysis of a few recent cases by national courts, which commented on the legal value of the work of these bodies. The paper then challenges two recurring arguments in the legal scholarship: their assimilation to judicial bodies, and the existence of a procedural obligation on States to consider their views. Next, it focuses on the interpretive weight of the pronouncements of these treaty bodies in international law, and, accordingly, in national jurisdictions. The paper argues that the alleged existence of a general procedural obligation on States to consider the pronouncements of human rights treaty monitoring bodies is controversial, and that their work does not have a specific, or privileged, legal position in defining the ordinary meaning of a treaty. The conclusions point out that supervisory bodies have a specific and important role in the international legal order, different from that of courts, which bears preserving.

The Horizontal Effect of International Human Rights Law in Practice

This article critically examines whether, and how, five United Nations human rights treaty monitoring bodies deal with situations in which human rights have been interfered with by non-State actors. The article uses the concepts of ‘direct’ and ‘indirect’ horizontal effect of international human rights law. An in-depth comparative analysis reviews the monitoring bodies’ general comments and views on individual communications from the bodies’ establishment until August 2017. The analysis identifies very limited evidence of ‘direct’, and two main kinds of ‘indirect’ horizontal effect of human rights applied by the bodies. First, it finds that while the bodies do engage with the ways in which non-State actors can interfere with human rights, they predominantly focus on the positive and procedural obligations of States. Second, it finds that where non-State actors are sufficiently ‘State-like’ in their nature and actions, they may be re-categorised as public actors for the purposes of human rights.

Privatization and Economic and Social Rights

Privatization is an ever more dominant model of economic and social rights (ESR) realization. Contracting out, public-private partnerships, and other approaches by which the private sector takes responsibility for, or supports the state in, delivering ESR-related goods and services are being advanced aggressively at both the national and supranational levels, with international financial institutions playing an especially influential role. Thus far, however, there has been relatively little attention paid to privatization in ESR scholarship and practice, resulting in a significant lacuna from both a normative and an empirical perspective. This gap is perhaps most striking—and worrying—in relation to the work of those international bodies mandated with interpreting and applying the ESR standards under international law. Taking as its starting point the delineation of ESR obligations in terms of the tripartite typology of respect, protect, and fulfill outlined by the United Nations Committee on Economic, Social and Cultural Rights, this article considers how that framework (and the human rights treaty-monitoring bodies which employ it in their work) addresses privatization from an ESR perspective. Highlighting an excessive emphasis on the obligation to protect to the exclusion of other relevant levels of obligation, the author asserts that such an approach is reflective of a failure to conceptualize privatization and the state’s role with regard to such properly—a failure that has very serious implications for the ability of the ESR framework as it stands to capture rights-harming actions in the context of privatization effectively. Arguing for a shift to the obligation to fulfill, the author contends this alternative approach would contribute significantly to the ability of ESR law as it stands to capture—and address—the full scope of state decision-making and (in)action at issue in situations of privatization. The article concludes with observations on recent moves by the Committee which though in the right direction leave much work to be done.

UN HUMAN RIGHTS TREATY MONITORING BODIES BEFORE DOMESTIC COURTS

AbstractThis article analyses both cooperative and confrontational interactions between domestic judges and UN human rights treaty monitoring bodies. Based on a number of cases collected through multiple databases, this article addresses the basis on which the monitoring bodies encourage the domestic acceptance of their views, general comments, and reports; how domestic courts engage with these findings; on what basis; and why some courts are more willing to engage with these findings. A key argument is that judicial accommodation is highly selective; domestic judges occasionally avoid, discount, and contest the interpretation put forward by the treaty monitoring bodies and thereby pose a challenge to their legitimacy.

The Toonen Decision: Domestic and International Impact

It is frequently assumed that quasi-judicial decisions of human rights treaty monitoring bodies do not have a significant impact on state practice. Yet if these decisions provide a political and symbolic resource in domestic and international politics, there might be room for increased optimism. In this chapter, we investigate the effects of the 1994 Toonen decision of the UN Human Rights Committee (HRC). We find that the case had a partly transformative effect on LGBT politics in the respondent state — Australia — but that the impact of that communications procedure was contingent (compared to levels of compliance with other HRC decisions against Australia). Turning to the international arena, we find that the Toonen decision most likely sparked greater attention by primarily (although not exclusively) Western states on LGBT issues before the HRC. However, subsequent state reporting to the Committee has dealt primarily with non-discrimination and not with de-criminalization of homosexual relations specifically.

Women's Reproductive Rights and Reparations: Lessons from the Inter-American System of Human Rights

Women’s reproductive rights in the Inter-American region face relentless attack as conservative movements coupled with longstanding sociocultural norms, challenge women’s rights to autonomy, equality and non-discrimination. Cases emerging from human rights treaty monitoring bodies, of which one is the Inter-American System of Human Rights, have progressively noted the relationship that exists between gender, discrimination, violence against women, and women’s limited, or even nonexistent, enjoyment of their reproductive health rights. While the Inter-American System has recently begun to emphasize a gender approach in its work, there remains a significant gap between rhetoric and reparation, where gender-based analysis of reproductive rights violations does not necessarily lead to engendered reparations.This paper incorporates empirical research and Ruth Rubio-Marin and Clara Sandoval’s work on engendering reparations, in order to explore the gap between rhetoric and reparation in the 2012 Inter-American Court case, Artavia Murillo et al. (“In vitro fertilization”) v. Costa Rica. While this case was groundbreaking for several reasons, of particular importance for this research is the Court’s analysis of the role of gender as it applies to reproductive rights for men and women. This case has been championed as a victory for women’s rights in the Inter-American region and beyond, and has also been the source of much contention. Although this case has much value as a major contributor to the growing body of reproductive rights litigation, there are significant shortcomings in terms of its applicability as a women’s rights case, particularly in its failure to engender reparations issued in the Artavia Murillo et al. judgment. This paper highlights the recent advancements in reproductive rights litigation before the Inter-American System, while also providing recommendation for how to better engender reparations in upcoming women’s (reproductive) rights cases.

Domestic Courtss Engagement with UN Human Rights Treaty Monitoring Bodies: A Thematic Report for the ILA Study Group on Principles on the Engagement of Domestic Courts with International Law

This thematic report, prepared for the ILA Study Group on Principles on the Engagement of Domestic Courts with International Law (May 2011), supplements the trends and principles provided in the ILA Study Group’s Preliminary Report (2012). The report examines (I) how domestic courts engage with the findings of UN human rights treaty monitoring bodies; (II) on what basis; and (III) why some courts are more willing to engage with the findings while others are not. This report highlights the selective and partial accommodation of the international findings by domestic courts which thereby approve and contest the treaty bodies’ opinions and their legitimacy.

Why Addressing Unsafe Abortion is Central to the Post-2015 UN Development Agenda

Ensuring that abortion – an essential component of reproductive health care – is legal and safe can contribute to reducing maternal deaths and injuries and is central to achieving social justice and gender equality and equity through the post-2015 UN development agenda. Brazil is a case in point with its high rates of induced abortion, maternal deaths and morbidity due to unsafe abortions and disproportionate enforcement of the abortion law on young, poor and black women with low socio-economic conditions and literacy status. Criminalization of abortion contravenes basic human rights and exacerbates inequities among women since criminal laws have a disproportionate impact on the most vulnerable women.The Beijing Declaration and Platform for Action, as well as human rights treaty monitoring bodies, have stated that countries must review their criminal laws on abortion. Nevertheless, governments continue to criminalize abortion and implement policies denying women’s rights to exercise their sexual and reproductive autonomy. The post-2015 development agenda must focus on ending poverty, improving health and promoting gender equality, shifting from a disease focus to one that seeks to increase women’s reproductive autonomy and human rights. This should include work to decriminalize abortion and ensure that women and girls have access to safe legal abortion as part of a health goal that aims to achieve universal access to needed health care.

The resilence of the Human Rights Norm in an Era of Counter-Terrorism

This article seeks to explore the tensions arising from the interaction between human rights and counter-terrorism and contribute to the debate on the feasibility of sustaining the former in such trying situations as the latter through the determination of a role for the United Nations’ Human Rights treaty monitoring bodies in protecting human rights while countering terrorism. While the article acknowledges and does not for a moment suggest that this mechanism is intended to be the panacea for the problem raised, it is explored with the understanding of its potential in contributing to the work of the larger United Nations’ human rights machinery in protecting human rights while countering terrorism. The article begins with a brief discussion of the relationship between counter-terrorism and human rights and the many controversies surrounding the debate which will be the focus of the first part of the article. The second part provides a detailed examination and thematic analysis of the work of the United Nations’ human rights treaty bodies in the area of protecting human rights while countering terrorism through which a role for the human rights treaty monitoring bodies is seen to emerge. This role is given further perspective and refinement through the addressing of the weaknesses, both internal and external, of the United Nations’ human rights treaty system and through recommendations for further action which will be the focus of the third part of the article.

Human Rights in the International Court of Justice

In this speech delivered at the conference honouring Professor Dugard, President Higgins discusses various human rights issues that have come before the International Court of Justice, including self-determination, reservations to human rights treaties, the application of human rights instruments to occupied territories, and allegations of genocide by one state against another. President Higgins notes that in the past few decades the ICJ has been joined by regional human rights courts, commissions and treaty monitoring bodies. Similar human rights claims are surfacing in these diverse fora, but the acknowledged expertise of these specialist bodies and the desire to avoid fragmentation provide an impetus for all concerned to seek common solutions on evolving points of law.