Treaty Bodies Research Articles

Three Decades of CEDAW Committee General Recommendations

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is the most prominent, although not flawless, women’s rights treaty. Yet, the slow, haltered or even backward steps we have witnessed with regard to gender equality beg the question, what role can cedaw play in delivering a more transformative set of gender-responsive laws at the domestic level? This article is centred on the two-fold goal of stronger domestication of women’s rights norms and the provision of more systematic standards to enhance treaty body reporting. With these goals in mind, this article offers the results of a structured analysis of the CEDAW Committee’s 38 General Recommendations issued between 1986 and 2020, in order to establish a roadmap for the enactment of gender-responsive domestic laws and policies grounded in women’s rights norms. Seven core demands or ‘criteria’ emerge and serve to guide States Parties towards achieving gender-responsive legal and policy reform. At a key juncture in CEDAW’S history and at a moment when, in the eyes of some, international human rights treaties may prove inadequate to manage today’s threats to fundamental human rights, these seven priorities not only provide a viable, scalable and evidence-based roadmap to inform the enactment of gender-responsive domestic laws but they also create a basis for enhanced reporting to and compliance with CEDAW.

Using International Environmental Law to Enhance Biodiversity and Nature Conservation During Armed Conflict

Abstract Biodiversity and nature are severely impacted by armed conflict, particularly those fought in biodiversity-rich environments. Whether harm is caused directly by bullets and bombs, through the seepage of toxic chemicals into rivers and soils, the ground-churning tracks of tanks, or the ‘conservation vacuum’ the result is often the same — severe, possibly permanent, ecological change. International humanitarian law (IHL) has consistently come up short in delivering environmental protection on the battlefield. Can international environmental law (IEL) fare any better? The International Law Commission (ILC) and the International Committee of the Red Cross (ICRC) have both submitted major new guidelines in the last two years, following more than a decade of in-depth analysis of the IHL rules governing protection of the environment in relation to armed conflict. However, neither body was able to analyse the applicability of IEL obligations during armed conflict. Several authors have more recently entered this space, but none have so far undertaken a rule-by-rule analysis and spanning such a range of treaties. This article assesses the potential of the main biodiversity and nature conservation treaties to offer further environmental protection during armed conflict. Identifying complementary IEL obligations, particularly in relation to the conduct of hostilities, could be valuable to both mirror and reinforce IHL protections, and would ensure that IEL treaty bodies and third states have a basis upon which to promote conservation work with the parties to the conflict.

Rendering International Human Rights Law Fit for Purpose on Climate Change

Abstract The present article addresses the unique legal and operational challenges encountered in the adoption of a human rights-based approach to climate change under international law. It examines the suitability for purpose of the international human rights regime and outlines the key steps to be taken in the requisite advancement of recourse to justice in climate matters. Five central challenges are addressed, namely, of the exclusivity of climate law and international human rights law, the operational barriers within the UN human rights system, specific legal challenges facing the UN Treaty Body mechanisms, the causation challenges associated with attributing responsibility for climate harm to states and, finally, the extraterritorial application of international human rights law. These challenges represent some of the most significant hurdles emerging through the literature and practice, which need to be overcome to enable international human rights law to better provide recourse to justice to climate-vulnerable states, groups and individuals.

Following Geir, or Another Little-Noticed Phenomenon in International Law

Abstract This contribution to a special issue honoring Geir Ulfstein links and extends two prominent themes in Geir’s scholarship, namely innovations in lawmaking by treaty bodies, and global constitutionalism. It does so by outlining a series of understudied and undertheorized interactions among treaty bodies from different international legal regimes, and arguing that these interactions represent an underexplored domain for the application of global constitutionalist analysis.

(Th)reading Rights and Justice: Women and Girls with Disabilities

ABSTRACT Despite calls for no one to be left behind, women and girls with disabilities continue to face systemic marginalisation and gaps in rights protections that limit their access to education, health, public services, and justice. Research in transnational and international relations offers little to help understand this gendered disability injustice. This article examines how discussions of elements of justice as redistributive, recognition, participative and restorative address people with disabilities as well as how disability rights within the United Nations treaty body system address the four elements of justice. Drawing on both academic and community critiques of both disability rights and justice, the article asks how our understandings of justice and rights perpetuate these exclusions and what transformative changes are required to redress the marginalisation of women and girls with disabilities.

The more the better? The complementarity of United Nations institutions in the fight against torture

When the United Nations Universal Periodic Review was established in 2007, it was stressed that it should complement the work of the United Nations treaty bodies. At the same time, fears were expressed that similarities between the two procedures might lead to potentially problematic duplications or contradictions among them. To shed light on whether this is the case, this article devises a framework to assess the degree to which human rights bodies provide duplicating or contradicting recommendations to States. Focusing on the case of torture, it creates an original database of recommendations delivered to 14 countries in the years 2012–2016. Results show that duplications are frequent and provide opportunities to States to use the Universal Periodic Review to contest the implementation of treaty bodies’ recommendations. Contradictions are limited, although when they occur, they create room for States to selectively choose which recommendations to implement.

Interview with Gerard Quinn

Gerard Quinn is the United Nations (UN) Special Rapporteur on the rights of persons with disabilities. A graduate of Harvard Law School, he founded and directed the Centre for Disability Law & Policy at the National University of Ireland for many years. He sat as a member of the Council of Europe's treaty body on social rights and served as a civil servant in the European Commission, where he drafted European Union disability policies. He has conducted many large studies for the UN, including a 2002 Study that helped launch the drafting of the UN Convention on the Rights of Persons with Disabilities. He led the delegation of Rehabilitation International during the drafting of the treaty. He has received many lifetime awards for his work on international disability law from the US International Council on Disability, the European Association of Service Providers for Persons with Disabilities and Rehabilitation International. He was conferred with an honorary doctorate for his worldwide disability law work by Lund University in 2022. He has held honorary positions at the National Academy of Legal Studies and Research (NALSAR; Hyderabad, India), Wuhan University (China), Fudan University (Shanghai), University of New South Wales (Sydney), Deakin University (Melbourne), Harvard Law School and Haifa University (Israel). He served on the Council of State in Ireland where he advised the President on constitutional law matters. His hobbies include folk music and storytelling.

Article: The EU UK TCA’s Institutional Framework and Parliamentary Democracy

The TCA (EU-UK Trade and Copperation Agreement) establishes a very comprehensive institutional framework with Partnership Council and diverse Committees having partly substantial decision-making powers for the development of the TCA. These considerable public functions prompt legitimacy concerns as to their democratic control, which this article explores in detail. It will be shown that the exercise of public powers by TCA treaty bodies meets with a sobering legal situation regarding democratic control mechanisms over treaty body decision-making at different levels. Thus, from a constitutional perspective, the legal and legitimate transfer of powers requires additional safeguards as to their democratic legitimacy. Solutions for better control of treaty body decisions by parliaments must be developed at several levels simultaneously. EU association agreements, EU trade agreements, treaty bodies, decision-making, democracy, accountability, Trade and Cooperation Agreement

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 Committee of the Rights of the Child—Does Size Matter?

Abstract The Convention on the Rights of the Child celebrated its 30th birthday in November 2019. All Member States to the United Nations save one have ratified the convention during the 30 years of its existence. Three Optional Protocols were added to the Convention. In order to monitor and check progress, a treaty body was created, the Committee on the Rights of the Child, based in Geneva. This treaty body is regularly evaluating the reports of Member States. Concluding observations have to be drawn to assist Member States in upgrading the level of child protection in their respective countries. Treaty bodies have also to draft General Comments among other duties. Moreover, the Committee has to react to individual communications coming from children or persons acting on their behalf.

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.

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

AbstractThe comment takes up the discussion by Ivana Jelić and Linus Mührel on the merits and deficits of the UN Human Rights Committee and the options for its reform. It advocates a view that takes contradictions between different perspectives on human rights into account, be they rooted in legal culture or in societal forces. It addresses discourse as the source of legitimacy and normativity of human rights, and therefore agrees with proposals to strengthen the treaty bodies within the framework of existing treaties, but also recalls the conditions of legal and societal discourse on the domestic plane.

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.

Vicious Cycle: Violations of Foreign Nationals’ Rights among CAT Countries

ABSTRACTThis article explains abuse of foreigners’ rights by identifying an unexplored by-product of human rights shaming—reciprocation. By identifying this phenomenon, the article explains countries’ noncompliance with treaty obligations, focusing in particular on noncompliance with the Convention against Torture's (CAT) provisions on foreign nationals’ rights. States who learn about violations of their citizens’ rights in other ratifying countries violate foreigners’ rights at home. The article hypothesizes that the likelihood of violations of foreign nationals’ rights in a country is positively associated with mentions of violations of that country's citizens’ rights in other treaty countries. To test these propositions, the article presents new data on countries’ violations of foreign nationals’ human rights as documented in the CAT Treaty Body's reports. The results of rare events logistic regression analysis support the hypothesis. Conceptualizing this dynamic among CAT countries as negative diffuse reciprocity, the article draws theoretical conclusions and policy implications.

Proposing a Relative Enforcement Mechanism for the Treaty on Business and Human Rights

An Intergovernmental Working Group is established by the Human Rights Council to adopt a treaty on Business and Human Rights. According to the draft treaty the enforcement mechanism relies on a treaty body working through a reporting-based mechanism. In this article the enforcement mechanism of the treaty is analysed through the progressive model of accountability presented by Gupta and Van Asselt. It also takes further the analysis based on the progressive model by Nadia Bernaz of the enforceability measures adopted within the treaty. The enforceability of the treaty is further discussed in this article and a relative enforcement mechanism is proposed. The proposal includes structural changes within the treaty body and inclusion of the role of non-state entities for more efficient enforcement.

Towards an Amicable Solution: The Inter-State Communications Procedure under ICERD

Abstract Articles 11–13 ICERD provide for inter-State communications before the UN Committee on the Elimination of Racial Discrimination. The mechanism was triggered for the first time in 2018, with three inter-State communications – Qatar v. Kingdom of Saudi Arabia, Qatar v. United Arab Emirates and Palestine v. Israel. This article offers a detailed, article-by-article analysis of the ICERD inter-State communications mechanism. It looks back at CERD decision-making under Article 11, which pioneered rules of procedure and practice in inter-State communications before a UN treaty body. It considers the composition of the ad hoc Conciliation Commissions under Article 12. It looks forward to the role of the ad hoc Conciliation Commissions under Article 13 in terms of fact-finding, an amicable solution and recommendations. In conclusion, the potential of the Articles 11–13 mechanism as a global contentious human rights jurisdiction is emphasised.

Surrogacy regulation: Trends in international and Russian law

Surrogacy regulation: Trends in international and Russian law

“Gender” in International Human Rights Law: Theory and Practice

INTRODUCTION. The institute for the protection of women both at international and national levels taking into account the ongoing discussions on the term “gender” is considered in the article. The authors examine the distinction between concepts “sex”, “gender” and “gender identity”, enshrined in international legal acts and documents, the States’ positions and approaches to their use, including on the example of the implementation of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, better known as the Istanbul Convention.MATERIALS AND METHODS. During the research the authors used different international legal documents, including international treaties, recommendations of the United Nations treaty bodies, reports of the special rapporteurs and international experts, outcome documents of international conferences, as well as doctrinal sources and national legislation of foreign countries. The study was carried out based on general scientific and special scientific methods. The methods of legal modeling and forecasting were widely used in the analysis in order to define prospects for possible future studies and development of international human rights law on the protection of women from violence and domestic violence.RESEARCH RESULTS. Demonstrating different approaches to understanding the term “gender” in protecting women from violence and domestic violence, implemented by international organizations and States, the authors examined factors that influence the position of national authorities of a number of countries when considering the possibility of accession or ratification of the core international legal acts in this area on the example of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence.DISCUSSION AND CONCLUSION. The authors came into conclusion that the problems of violence against women and domestic violence should be viewed through the lens of gender equality concept, which does not entail the elimination of biological differences between two sexes and does not encourage women and men to change their social roles. The article stresses the need for an internationally agreed definition of the term “gender” in order to strengthen the legal and institutional mechanisms for a more efficient practical implementation of measures to combat violence against women and domestic violence.

Unaccompanied Children in Limbo: The Causes and Consequences of Uncertain Legal Status

Abstract Unaccompanied children seeking international protection often find themselves with forms of discretionary, time-limited, or otherwise uncertain legal status in countries outside their own. This may be due to the available options for legal status or to long delays in determination of protection claims, among other factors. While the legal and policy reasons for this vary, of particular concern is the imposition of such uncertainty to discourage children from persisting with protection claims, to deter others from arriving, to delay status resolution until adulthood, or to facilitate removal. Children possessing a legal status that is insecure or uncertain may be described as being in ‘legal limbo’. This article explores this issue and examines the often deleterious consequences of limbo for unaccompanied children. Through an analysis and comparison of Australia and the United Kingdom, it explains ‘legal limbo’ as a function of States’ desire to deter, control, and punish irregular migration. This article argues that an approach based on rights, as opposed to migration control, must guide the availability of secure legal status to unaccompanied children. To this end, it articulates the basis of an obligation to provide these children such status, drawing on their rights under the Convention on the Rights of the Child and on the commentary of treaty bodies. The article concludes by calling for better pathways to permanent stay for unaccompanied children.

Strategic litigation against torture: Why domestic courts matter.

Strategic human rights litigation is often associated with filing cases before in-ternational and regional courts and treaty bodies. This article examines ways in which significant advances in protecting the rights of victims of torture and similar crimes can be achieved through domestic courts, even in countries with limited respect for the rule of l aw. This article does not cover universal jurisdiction or transnational cases, but rather focuses on how domestic courts can be used to address torture that takes place in the same country. It is not a review of global practice; rather, it is based on observations drawn from the author's personal experience of over 25 years of strategic litigation and ad-vocacy against torture; lessons learned from the work of partner organizations and lawyers from around the world; and the results of three research projects commissioned by the Open Society Justice Initiative (OSJI): one on the impact of strategic litigation on torture in custody in Argentina, Kenya, and Turkey (OSJI, 2017); another on how do-mestic courts in Latin America handle repa-rations for torture and similar human rights violations (Garcia Garcia, Fierro Ferráez, and Lisitsyna, 2019); and a third on strategic liti-gation against torture in Asia (Bokhari, 2020). While acknowledging continued challenges, the author demonstrates that do-mestic courts are often better placed than their international counterparts to address several aspects of human rights litigation and protection of victims' rights and in some cir-cumstances can have broader impact.