Treaty Monitoring Bodies Research Articles

Abortion from an International Perspective after the Dobbs case

The American Supreme Court of Justice recently overturned the precedents that legalized abortion in the Dobbs v. Jackson Women’s Health Organization case. This article analyzes whether this decision is consistent with the current status of abortion as established in International Human Rights Law (IHRL), according to its classical sources (treaties and customary law). Since no treaty includes a right to abortion and there is no consistent practice among states to legalize abortion, various soft law instruments are discussed to clarify the consensus on this issue. These instruments include the agreements reached at the World Population Conferences, the Fourth World Conference on Women of 1995, and the pronouncements and case law of human rights mechanisms (treaty monitoring bodies and regional courts). This analysis shows that the arguments and conclusions in the Dobbs case are consistent with what states have agreed to internationally on the matter.

The Scottish Human Rights Bill and UN Treaty Monitoring Bodies: How Should Scottish Decision-Makers Treat “International Materials”?

The Scottish Human Rights Bill and UN Treaty Monitoring Bodies: How Should Scottish Decision-Makers Treat “International Materials”?

Which Children Have Rights? The Child’s Right to Bodily Integrity and Protection Gaps for Children with Intersex Traits under International and National Laws

This article examines protection gaps for children with intersex traits under international and national laws governing non-voluntary medicalized interventions into sexual anatomy. Various United Nations (UN) bodies, including the UN Special Rapporteur on Torture, the Office of the High Commissioner for Human Rights, human rights treaty-monitoring bodies and the Human Rights Council, have called for full acknowledgment and substantive protection of the rights of children with intersex variations—as with all children—to bodily integrity and (future) bodily autonomy in relation to their own sexed embodiment. However, these global norms generally have not been codified under international law, and most countries have not passed adequate, or any, legislation to secure these rights. We review relevant global norms, international human rights treaties and legislative developments in a range of countries to illustrate potential pathways for closing legal gaps in the protection of all children’s rights to bodily integrity and (future) bodily and sexual autonomy. Keywords: bodily integrity; children’s rights; gender binary; non-voluntary medical interventions; human rights; intersex.

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.

A response to decentralised governance of human rights: a Children's Rights Approach in Wales

ABSTRACT The dominant arrangement for governance in many States which are party to international human rights treaties is decentralisation. This puts implementation of human rights in the hands of institutions which are geographically closer to intended beneficiaries. Decentralisation to different levels of government introduces complexity, risk and opportunity to the governance of human rights. In response, UN Treaty Monitoring Bodies focus on State responsibility for implementation of human rights. The Committee on the Rights of the Child has emphasised the State as the coordinating body responsible for children's rights under the UN Convention on the Rights of the Child (CRC). In this paper, Wales is used as an example of a jurisdiction where decentralisation is a feature of children's rights, which has enabled a progressive approach to implementation. It explains the principled Children's Rights Approach which provides public authorities in Wales with a coherent framework to give effect to international children's rights policy planning and service delivery. As the contours of decentralisation in Wales are typical of arrangements in many States parties to the CRC, insights from Wales will be transferable to other jurisdictions. This experience is also relevant to other areas of human rights implementation in the context of decentralisation.

Treaty flexibility unilaterally boosted: Reservations to European Social Charters

Thus far, research into reservations to treaties has often overlooked reservations formulated to both European Social Charters (and its Protocols) and the relevant European Committee of Social Rights practices. There are several pressing reasons to further explore this gap in existing literature. First, an analysis of practices within the European Social Charters (and Protocols) will provide a fuller picture of the reservations and responses of treaty bodies. Second, in the context of previous landmark events it is worth noting the practices of another human rights treaty monitoring body that is often omitted from analyses. Third, the very fact that the formulation of reservations to treaties gives parties such far-reaching flexibility to shape their contractual obligations (à la carte) is surprising. An important outcome of the research is the finding that, despite the far-reaching flexibility present in the treaties analysed, both the States Parties and the European Committee of Social Rights generally treat them as conventional treaties to which the general rules on reservations apply. Consequently, there is no basis for assuming that the mere fact of adopting the à la carte system in a treaty with no reservation clause implies a formal prohibition of reservations or otherwise discourages their formulation.

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.

The Committee Against Torture tackles violence against women: A conceptual and political journey

In this article, we will examine how the official treaty monitoring body, the Committee against Torture, demonstrated that violenceagainst women was indeed a serious human rights problem that fell squarely within the preview of the Convention against Torture.Because States parties to the Convention are required to report about their compliance with the Convention routinely, the Committee developed a substantial database on national practices and policies. In the course of examining these periodic reports of States parties, and then consolidating findings and conclusionsinto two general comments, the UN Committee Against Torture integrated violence against women in its jurisprudence ontorture and ill-treatment by showing that existing provisions could and did incorporate the obligation to protect against and provideredress for torture and ill-treatment directed against women. Initiatives to raise these issues show how the Committee “placed the range of gender violence—from public to private – squarely within the frame of the Torture Convention” (Copelon, 2008, 242). The article will recall how the adoption of two general commentsto the Convention firmly integrated gender-based violence as a subject of concern under the Convention: General comment no2 (2008) addressed Article 2 on the State obligation to prevent torture and ill-treatment and General comment no 3 (2012) focusedon Article 14 which concerns the obligation to provide redress to victims of torture. Both authors have been members of the Committee during these important years, and it is our aim to provide an overview of the significant processes and decisions taken by the CAT that resulted in the strengthening of the Committee’s inclusiveness and comprehensiveness in the struggle to prevent torture. Finally, we will reflect on some future challengesfaced by main anti-torture body/ies as part of global efforts to fight violence against women.

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"

Law on Reservations to Human Rights Treaties: Historical Development and Its Prospects

The application of rules on reservations under the Vienna Convention on Laws of Treaties (VCLT) has generated a debate to revisit the Vienna regime. The rules on reservations under the VCLT have helped attain the universality of human rights treaties but at the price of integrity. The beneficial aspect of reservations is the promotion of universal recognition of human rights treaties. However, they have shattered the uniform and practical application of the provisions of these treaties. The disappointment of the treaty monitoring bodies over the VCLT’s rules on reservations to human rights treaties has resulted in the demand for a separate set of rules on reservations drawn to them. The universality and integrity of these treaties have been at the forefront of the treaty bodies and scholars. In the current debate on rules on reservations, this research tracks down the historical development of the law on reservations to multilateral treaties. It highlights the unique features of the human rights treaties and examines the application of rules to determine the compatibility of reservations. The research suggests treaty bodies adopt a novel approach to maintain the balance between universality and their integrity. Received: 9 April 2021 / Accepted: 3 June 2021 / Published: 5 September 2021

Engendering torture: the experience of the Committee against Torture

ABSTRACT This article traces the development of attention to the role of sex and gender regarding the practice of torture and ill-treatment by the Committee against Torture (CAT), a core UN human rights treaty monitoring body. It traces the experiences of the author during her initial years as a member of the CAT regarding issues of gender and gender-based violations of the Convention against Torture (UNCAT). It shows how an integrationist strategy broadened the scope of the CAT members, particularly with regard to bringing attention to previously invisible violations that women suffer. The article also explains how these interpretations were enshrined in the landmark General Comment No. 2 of the CAT, which consolidates and clarifies the obligations of States parties to the UNCAT.

Recognition of the Ainu as an Indigenous People in Japan: Legal Implications for their Right to Traditional Salmon Fishing

Abstract The Japanese government legally recognized the Ainu as an Indigenous People in 2019. While the legislation is a step forward, it does not provide the Ainu with concrete rights applicable to Indigenous Peoples as those rights are set out in international legal standards, articulated in several human rights instruments and authoritative statements issued by both United Nations organs and the international treaty monitoring bodies. The most common issue concerning Indigenous Peoples’ rights is the practice of traditional livelihoods linked to their lands and resources. Particularly for coastal communities, traditional fishing has been recognized as an important livelihood for sustaining the people’s culture and their ethnic and cultural identity. This article explores the traditional fishing right of the Ainu, which has recently become a point of conflict given that existing local regulations jeopardize the right. The article critically examines the compatibility of the provisions of the conflicting local and national regulations.

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.

Women’s right to health – modern challenges: international legal aspect

The article contains a detailed analysis of international legal acts regulating women's right to health; the focus is on problematic aspects that need to be addressed, including: violence, HIV / AIDS, protection during a pandemic of COVID-19. The article highlights the provisions of the following universal and regional acts of a general nature: the International Covenant on Economic, Social and Cultural Rights (1966), the Convention on the Elimination of All Forms of Discrimination against Women (1979), the Declaration on the Elimination of Violence against Women (1993), Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (2011), Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (2003). The article also covers proceedings of international intergovernmental forums, strategic documents, reports of the UN Secretary-General focusing on the general protection of women's rights and, in particular, the right to health, including the Vienna Declaration and Program of Action (1993), the Beijing Declaration (1995), Global Strategy for Women's and Children's Health (2010), Global Strategy for Women's, Children's and Adolescent's Health (2016-2030), Strategic Preparedness and Response Plan (2020), Report of the Secretary-General UN "Shared Responsibility, Global Solidarity: Responding to the Socio-Economic Impacts of COVID-19" (2020) etc. The emphasis is placed on the importance of general and special recommendations developed by international treaty monitoring bodies - the Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of Discrimination against Women in the field of women's health, which oblige states to comply with, protect and enforce rights in this area. In order to improve the situation in the field of protection of women's rights, the appropriate conclusions and recommendations on the im-plementation of the provisions of these acts into national state legislation have been made.

Complementary Protection and Encampment

Abstract A camp may be described as a temporary space in which individuals receive humanitarian relief and protection until a durable solution can be found to their situation. The camp environment is often riddled with contradictions—the camp can be a place of refuge while at the same time, a place of overcrowding, exclusion and suffering. This article asks to what extent removal of an individual from state A to state B, where he or she will have to live in a camp, is a breach of state A’s human rights law obligations. It argues that even if encampment in state B will expose the individual to terrible conditions, it is unlikely that they will be able to successfully challenge a removal decision before international human rights courts and/or treaty monitoring bodies.

Zagrożenie życia narodu jako przesłanka wstępna derogacji zobowiązań w dziedzinie praw człowieka

To determine the fate of human rights in extreme situations, the treaties contain a mechanism for derogating from obligations, i.e. derogations from their enforceability in such exceptional situations. The initial and fundamental criterion under which derogation steps are admissible is the existence of an exceptional public emergency that threatens the life of the nation, as referred to in Article 4(1) of the International Covenant on Civil and Political Rights and Article 15(1) of the European Charter of Human Rights, and about which Professor Anna Michalska wrote so competently in 1997. Neither the constitutions of modern states nor their practice of introducing states of emergency are helpful in defining this criterion more precisely; most often, they do not use it at all. Unfortunately, it is not to be found in Chapter XI of the Polish Constitution “States of Emergency”, nor in the laws of 2002 regulating these states. In the practice of the treaty monitoring bodies (Human Rights Committee in the ICCPR system; the European Commission and the Court of Human Rights in the ECHR system), we do not find incontestable nor indisputable indications. The concept of the “nation” is referred to society as a whole and is to be associated with its physical survival. In the author’s opinion, this is not the correct approach, as it is and must be about a “living nation”, a nation effectively exercising its rights. The enslavement of a nation, its subjugation, elimination of opportunities for its self-determination – far from its extermination – can unquestionably meet the requirements of the criterion of a threat to the life of the nation. The study of constitutional law (the nation-sovereign) and international law (the principle and right to self-determination of the nation) unequivocally confirms this thesis.

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.