International Human Rights

Lesson 4: Implementing Human Rights

Session 4.2 - Treaty Based Mechanisms

While the UN presents human rights as part of the international process, and devotes attention to human rights matters, the central missing factor is the creation of any form of binding obligation other states to uphold human rights. One key source for human rights enforcement is treaty-based mechanisms. In this session, we will consider human rights treaties and the manner by which treaties can serve to uphold human rights.

The three key methods that have been used in the international treaty framework for enforcing human rights are State Reporting, the issuance of General Comments, and providing for Individual Communications before relevant committees.

The treaties that have been drafted, such as the ICCPR – International Covenant on Civil and Political Rights, ICESCR ((International Covenant on Economic Social and Cultural Rights), CAT – Convention Against Torture, CERD – Convention Against Racial Discrimination to name but a few (please refer to documents book for other significant treaties) essentially employ a similar system of enforcement. That is, each treaty creates a specific Committee whose responsibility is to ensure that the treaty is being developed and adhered to by the signatory states.

The first such method is via State Reporting. That is, states are periodically to submit reports regarding the treaty, detailing how they are upholding the treaty and its articles. The reports are public and open to comments and criticisms, such as by NGOs who might highlight trouble areas or discrepancies in the report. The relevant committee then conducts a public hearing on the report, listening to various representatives of the state as well as NGOs. The committee will then issue its own report, analyzing the states submissions and suggestions avenues for improvement.

The key benefits of the state reporting process are that the committee can have the opportunity to discipline a state in a diplomatic manner as well as highlight specific problems that are to be addressed in subsequent reports. More importantly, the committee is engaging in important dialogue with the state in efforts to improve the human rights record. The process is slow and sometimes deferential, but it does allow for a review system that involves all relevant actors in an open forum. Enforcement as such does not exist, although states can be required to re-submit reports that contain too many discrepancies or problems.

Another tool regarding the General Comments. The General Comments are issued by the relevant treaty committee to assist states with understanding and applying the treaty. That is, the General Comments direct states as to how to apply the treaty, usually requiring them to sharpen reports and provide specific information, as well as assist in interpreting the meaning and scope of the treaty. Thus, in addressing specific articles on a periodic basis, the General Comments provide some form of legislative context to the treaty and stronger grounding for how it is to be interpreted and applied.

The third avenue associated with treaty enforcement is probably the most significant. That is referred to as the Individual Communication. In essence, the individual communication is as the name implies the capacity for an individual to apply before the relevant committee concerning a state violation of the treaty. The state is then required to submit an answer and the committee eventually issues a directive to the state as to how to proceed.

The individual communication is possible within the framework of the ICCPR, CERD, and CAT but note that it is an optional process, meaning it only applies to states who have agreed to allow individual communications. Unlike the state reports that apply to all treaty parties, the individual communication only applies to states that have consented. Nonetheless, individual communications go a long way towards upholding human rights at least for those states that have consented to the process and open the door for having individuals actively participate in the international human rights framework.

OPTIONAL READING: Steiner and Alston, 501-537

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