LW331/LW341 Human Rights - Lecture 2 – Friday 24 February 2022

THE UNITED NATIONS

TREATIES AND
INSTITUTIONS ON HUMAN
RIGHTS

Dr Morsen Mosses,
Lecturer
USP School of Law
OVERVIEW

 Learning outcomes for the topic

 Modern protection of international human rights law

 The UN Human Rights System - Treaty-based bodies

 The UN Human Rights System – Charter based bodies

 Other UN Institutions on the protection and promotion of Human

Rights

 Ratification and Application of Human Rights Treaties in the Pacific

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LEARNING OUTCOMES

 Demonstrate understanding of the series of International Human

Rights Treaties

 Demonstrate understanding of the institutional structure of the UN

Human rights System

 Demonstrate understanding of the mandates and responsibilities of

the key UN Human Rights institutions and their impact on the
Protection of Human Rights

 Demonstrate understanding of the consequences, benefits and

challenges of the ratification and application of human rights
treaties in the Pacific.

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MODERN PROTECTION OF
INTERNATIONAL HUMAN RIGHTS
 Charter of the United Nations (1945)

 Preamble to the UN Charter: “Peoples of the United Nations”

are determined “to reaffirm faith in fundamental human rights, in
the dignity and worth of the human person, in the equal rights of
men and women and of nations large and small” (Statement
concerning respect for all mankind and equality for all).

 Article 1: One of the goals of the UN is the achievement of

“international cooperation in…promoting and encouraging
respect for Human Rights and fundamental freedoms for all
without distinction as to race, sex, language or religion”.

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MODERN PROTECTION OF
INTERNATIONAL HUMAN RIGHTS
 The International Bill of Human Rights
 Universal Declaration of Human Rights (1948)
 International Covenant on Civil and Political Rights
(ICCPR) (1966)
 International Covenant on Economic, Social and Cultural
Rights (ICESCR) (1966)

 Rights highlighted in the International Bill of Rights: Civil

rights, political rights, economic rights, social rights and cultural
rights. In particular, two Covenants set out everyday rights such
as the right to life, equality before the law, freedom of
expression, the rights to work and education…

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MODERN PROTECTION OF
INTERNATIONAL HUMAN RIGHTS
 Core International Human Rights Treaties
 The International Convention on the Elimination of All
Forms of Racial Discrimination (ICERD). Adopted 1965 and
entered into force in 1969. Under the Convention, States parties
are pledged to, among other things, prohibit and put a stop to
racial discrimination by persons, groups and organizations.

 The ICCPR. Adopted in 1966 and entered into force in 1976.

The Covenant contains two Optional Protocols. The first
optional protocol creates an individual complaints mechanism
whereby individuals in member States can submit complaints to
be reviewed by the Human Rights Committee. The second
optional protocol abolished the death penalty.

 The ICESCR. Adopted in 1966 and entered into force in 1976.

The Covenant commits the State parties to work toward the
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granting of economic, social and cultural rights to individuals.
MODERN PROTECTION OF
INTERNATIONAL HUMAN RIGHTS
 Core International Human Rights Treaties
 The International Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW). Adopted
in 1979 and entered into force in 1981. It is regarded as the
international bill of rights for women. It define discrimination
and oblige States parties to undertake a series of measures to end
discrimination against women. In 1999, its optional protocol
was adopted and includes a procedure through which
individual women or groups can denounce national violations
of CEDAW directly to CEDAW’s committee.

 The International Convention against Torture, Cruel,

Inhuman or Degrading Treatment or Punishment. Adopted in
1984 and entered into force in 1987. State parties are pledged to
prevent torture within their borders…The Optional Protocol to
the Convention provides for the establishment of a system of
in-country inspections to places where people are deprived of 7
their liberty.
MODERN PROTECTION OF
INTERNATIONAL HUMAN RIGHTS
 Core International Human Rights Treaties
 The International Convention on the Rights of the Child.
Adopted in 1989 and entered into force in 1990. It sets out the
civil, political, economic, social and cultural rights of very child,
regardless of their race, religion or abilities. The Convention has
three optional protocols. The first one prevent State parties to
forcibly recruit children into armed forces. The second call
on State parties to prohibit child prostitution, child
pornography and the sale of children into slavery. A third
protocol enables children whose rights have been violated to
complain directly to the Committee on the rights of the child.

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MODERN PROTECTION OF
INTERNATIONAL HUMAN RIGHTS
 Core International Human Rights Treaties
 The International Convention on the Protection of the Rights
of All Migrant Workers and Members of Their Families.
Adopted in 1990 and entered into force in 2003. It provides a set
of binding international standards to address the treatment,
welfare and human rights of migrants (seeks to prevent and
eliminate exploitation of migrant workers…)

 The International Convention for the Protection of All

Persons from Enforced Disappearance (CED). Adopted in
2006 and entered into force in 2010. It oblige State parties to
take necessary measures to prevent forced disappearance.

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MODERN PROTECTION OF
INTERNATIONAL HUMAN RIGHTS
 Core International Human Rights Treaties
 The International Convention on the Rights of Persons with
disabilities (CRPD) Adopted in 2006 and came into force in
2008. It reaffirm that all persons with all types of disabilities
must enjoy all human rights and fundamental freedoms. It oblige
the State parties to take necessary measures to protect the
rights and dignity of persons with disabilities. Its optional
protocol allow the Committee on CRDP to consider
communications from or on behalf on individuals or groups
who claim to be victims of violation by that State party of the
provisions of the Convention.

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 THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE TREATY BASED BODIES
Established Meeting State party Individual complaints Other docs
per/by s reports considered/issued

Human Rights ICCPR 3/yr Every 4 yrs Relating to States parties to 1st General comments,
Committee Art 28 NYC or Optional Protocol to ICCPR inter-state
Geneva complaint

Committee on Economic 2/yr Every 5 yrs Relating to States parties to the General comments
Economic, Social and and Social Geneva Optional Protocol to ICESCR
Cultural Rights Council
resolution
1985/17

Committee on the CERD 2/yr Every 2 yrs Relating to States parties who have Early warning,
Elimination of Racial Art 8 Geneva made the necessary declaration under Inter-state
Discrimination art 14 of CERD complaint, general
comments

Committee on the CEDAW 2/yr Every 4 yrs Relating to States parties to the Inquiry into
Elimination of Art 17 Geneva Optional Protocol to CEDAW situations, general
Discrimination against recommendations
Women

Committee against CAT 2/yr Every 4 yrs Relating to States parties who have Inquiry into
Torture Art 17 Geneva made the necessary declaration under situations, 11
general
art 22 of CAT comments
 THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE TREATY BASED BODIES (CONT.)
Established Meetings State party Individual complaints Other docs
per/by reports considered/issued

Committee on the CRC 3/yr Every 5 yrs Relating to State parties to the General
Rights of the Child Art 43 Geneva Optional Protocol (on a comments/discussio
communication procedure) to CRC ns

Committee on Migrant CMW 2/yr Every 5 yrs Not yet in force General
Workers Art 72 Geneva When 10 State parties have made the comments/discussio
necessary declaration under art 77, ns
the CMW may consider individual
complaints

Committee on the CRPD 2/yr Every 4 yrs Relating to State parties to the General
Rights of Persons with Art 34 Geneva Optional Protocol to CRPD comments/discussio
Disabilities ns

Committee on Enforced CED 2/yr Initial report Relating to States parties who have na
Disappearances Art 26 Geneva w/i 2 yrs of made the necessary declaration under
entry into art 31 of CED
force for the
state

Subcommittee on Optional na na na Annual report

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Prevention of Torture Protocol to
CAT
THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE TREATY BASED BODIES (CONT.)
 Committees of Treaties
 Ten Human Rights Committees

 Consist of independent experts

 Created in accordance with the provisions of relevant treaty

 Most important functions: consideration of state parties reports;

consideration of individual complaints; publish general
comments on treaties

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THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE TREATY BASED BODIES (CONT.)
 Consideration of the State reports by the Committees
 All State parties to each treaty are required to submit initial and
periodic reports on the measures they have adopted to give effect
to the provisions of the relevant treaties

 Means of promoting and monitoring the implementation of

Human Rights Treaties

 The reporting procedures made it possible for the Committees to

determine to which extent a State party has fulfilled its treaty
obligations, what more needs to be done, any impediments to
progress and strategies for surmounting such obstacles

 The issuance of Concluding Observations by the Committees

(Views, advice and directions on how a State may further 14

promote and protect the treaty provisions)

THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE TREATY BASED BODIES (CONT.)
 Consideration of complaints by the Committees
 The basic concept of individual complaint mechanisms under the
human rights treaties is that anyone may bring a complaint
against a State party alleging a violation of treaty rights to the
body of experts monitoring the treaty.

 Against whom can a complaint under a treaty be brought?

Any state which: (1) is a party to the treaty in question; and (2)
has recognized the competence of the Committee to receive and
consider complaints from individuals.

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THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE TREATY BASED BODIES (CONT.)
 Consideration of complaints by the Committees
 Who can make complaints to the treaty bodies? Anyone can
lodge a complaint with a Committee against a State that satisfies
the above two conditions. One may also bring a claim on behalf
of another person on condition that his/her written consent is
obtained (without requirement as to its specific form). In certain
cases, one may bring a case without such consent, for example,
where a person is in prison without access to the outside world
or is a victim of an enforced disappearance. In these cases, the
author of the complaint should state clearly why such consent
cannot be provided.
 When can you make a complaint under the human rights
treaties? Upon the exhaustion of domestic remedies and within
a period of time (depending on specific treaties) after the
exhaustion of domestic remedies.
 How do you make a complaint? Mail, fax or email. 16
THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE TREATY BASED BODIES (CONT.)
 Publication of General Comments by the Committees

 The General Comments consist of guidance to States on the

Committees understanding of what States obligations under the
respective treaty may be.

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THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE CHARTER-BASED BODIES
 Human Rights Council and its Subsidiary Bodies

 The Human Rights Council was established by General

Assembly resolution 60/251 of 15 March 2006.

 The Human Rights Council replaced the Commission on Human

Rights which was established under the Economic and Social
Council in 1946 – created under Art 68 of UN Charter

 Former Commission on Human Rights was often criticized for

politicization.

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 THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE CHARTER-BASED BODIES
 Human Rights Council and its Subsidiary Bodies

Human Right Council

Reports to UN General Assembly

Meetings 3 times annually & special sessions as needed

Meet at Geneva
Members 47 (Africa: 13; Asia: 13; Eastern Europe: 6; Latin America &
the Caribbean: 8; Western Europe & Other states: 7)
Term 3 years
Election By UN General Assembly
Webpage http://www.ohchr.org/EN/HRBodies/HRC/Pages/
HRCIndex.aspx
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THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE CHARTER-BASED BODIES
 Human Rights Council and its Subsidiary Bodies
 Key functions of HRC
 Make recommendations to General Assembly for further
development of international law in the field of human rights

 Serve as a forum for dialogue on thematic issues on all human

rights

 Universal Periodical Review

 Individual Complaints

 Mandate special rapporteurs to investigate and monitor relevant

human rights issues 20
THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE CHARTER-BASED BODIES
 Human Rights Council and its Subsidiary Bodies
 The Universal Periodic Review (UPR)
 UPR is a unique process which involves a review of the human
rights records of all UN Member States

 State-driven process, but under the auspices of the Human

Rights Council

 Opportunity for each State to declare what actions they have

been taken to improve the human rights situations in their
countries and to fulfil their human rights obligations.

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THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE CHARTER-BASED BODIES
 Human Rights Council and its Subsidiary Bodies
 The Universal Periodic Review (UPR)
 Universal Periodic Review Working Group carries out the
review

 Meets in three sessions per year: 16 countries are reviewed at

each session

 A four year-cycle to complete review of all 193 Member States

of the UN

 A report of the Working Group is issued for each country

that summarizes the meetings held and includes conclusions or
recommendations.
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THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE CHARTER-BASED BODIES
 Human Rights Council and its Subsidiary Bodies
 The Universal Periodic Review (UPR)
 The documents on which the reviews are based are:
1) Information provided by the State under review, which can take the form of
a “National Report”;
2) Information contained in the reports of independent human rights experts
and groups, known as the Special Procedures, human rights treaty bodies, and
other UN entities;
3) Information from other stakeholders including national human rights
institutions and non-governmental organizations.

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THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE CHARTER-BASED BODIES
 Human Rights Council and its Subsidiary Bodies
 The Special Procedures
 The special procedures are either individuals (called special
Rapporteur or Independent Expert) or a working group
composed of five members appointed by Human Rights Council

 Mandate to report and advise on human rights from a thematic or

a country specific perspective

 Specifically, with the support of OHCHR, they undertake

country visits, act on individual cases of alleged violations by
sending communications to States, conduct thematic studies,
convene experts consultations, raise public awareness…

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THE UNITED NATIONS HUMAN RIGHTS
SYSTEM - ‘TWO TRACK APPROACH’
 THE CHARTER-BASED BODIES
 Human Rights Council and its Subsidiary Bodies
 Individual Complaints
 Individuals, groups or Non-Governmental Organizations
that claim to be victims of Human Rights violations or that
have direct, reliable knowledge of such violations may submit
communications to working groups on communications and
situations

 Two distinct working groups - the Working Group on

Communications and the Working Group on Situations – are
responsible, respectively, for examining written communications
and bringing consistent patterns of gross and reliably attested
violations of human rights and fundamental freedoms to the
attention of the Human Rights Council.

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OTHER UN INSTITUTIONS PROTECTING
AND PROMOTING HUMAN RIGHTS
 THE HIGH COMMISSIONER FOR HUMAN RIGHTS
 Part of the Secretariat structure, reporting to the UN Secretary-
General.
 Works closely with governments and civil society partners
around the world to ensure that international standards of
human rights are implemented on the ground, and to promote
human rights education and international law.
 Supports the Human Rights Council’s work, as well as that of
the treaty-monitoring bodies which review states’ compliance
with the international human rights treaties they have signed on
to.

 THE COMMISSION ON THE STATUS OF WOMEN (CSW)

 Functional Commission of the Economic and Social Council
(ESC)
 Primary function: Prepare recommendations and report to the
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ESC on promoting women’s rights in political, economic, civil,
social and educational fields.
OTHER UN INSTITUTIONS PROTECTING
AND PROMOTING HUMAN RIGHTS
 THIRD COMMITTEE (SOCIAL, HUMANITARIAN AND
CULTURAL ISSUES)
 Establish by and under the auspices of the General Assembly
 The General Assembly allocates to the Third Committee,
agenda items relating to a range of social, humanitarian affairs
and human rights issues that affect people all over the world
 E.g: Discusses questions relating to the advancement of
women, the protection of children, indigenous issues…

 THE INTERNATIONAL CRIMINAL COURT

 Independent judicial body – in cooperation with the UN
 Investigates and tries individuals charged with gravest
crimes (war crimes, genocide…)

 THE INTERNATIONAL CRIMINAL TRIBUNALS (ICTY, ICTR…)

 Established by the UN Security Council 27

 Deal with war crimes that took place in specific places.

HUMAN RIGHTS ARCHITECTURE AT
THE UNITED NATIONS

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 RATIFICATION AND APPLICATION OF
HUMAN RIGHTS TREATIES IN THE

PACIFIC
Generally, Pacific has a low regional rate of ratification of human rights treaties
 Ratification of human rights treaties (through dualism or monism?)
 The South Pacific countries tend to adopt dualism approach in practice
 A treaty does not become part of domestic law unless and until it is specifically
transformed by an Act of Parliament (see PP slides 3 for Public International Law
on Moodle).
 Consequences?
 Advantages?
 Challenges?
 Application of human rights treaties by the courts in the region
 Analysis of the case law (in your country and in the countries of the region) on the
application of human rights treaties
 Have the courts always applied ratified human rights treaties?
 In what circumstances, the courts refused (or would likely refuse) to apply ratified
human rights treaties.
 Have the courts ever applied non-ratified human rights treaties? In what
circumstances? 29
 RATIFICATION AND APPLICATION OF
HUMAN RIGHTS TREATIES IN THE

PACIFIC
Ratification of human rights treaties (through dualism or monism?)
 Application of human rights treaties by the courts in the region
 Eg- In Vanuatu, the Supreme Court applied the provisions of CEDAW to grant equal land rights to
women in Noel v. Toto, 1995 (the dualist approach was observed - Vanuatu ratified CEDAW by an Act
of Parliament in the same year). However, in the case Joli v. Joli, 2003, the Court of Appeal declined
to apply the same Convention although Vanuatu is party to it. The Court held that it was the role of the
Parliament to decide how gender equality in matrimonial property must operate in the country.
 Eg In Wagner v. Radke, 1997, the Supreme Court of Samoa applied the Hague Convention on the
Civil Aspects of International Child Abduction (1980), in dealing with a child abduction case although
Samoa is not party to the treaty.
 Eg In Fiji, the courts have applied a number of treaties whereas Fiji is not party to them (the dualist
approach has not been strictly observed). In State v. Mutch, 1999, the High Court applied the
Convention on the rights of the child principle of the best interest of the child to sentence the child
offenders.
 Eg In Cook Islands, the High Court held in R v. Smith 1999 (proceedings arising out of criminal
action against a tax defaulter), that ICCPR (tough ratified by New Zealand action) could only apply if
there had been an enabling legislation domesticating it (dualist approach observed)
 Eg In Tepulolo v. Pou & Attorney General, 2005, the High Court of Tuvalu refused to apply the
provisions of the Convention of the Right of Child and the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW) though Tuvalu was party to both of the treaties
because the Parliament didn’t enact laws to that effect.
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