Treaty based Human Rights Mechanisms

Bishal KhanalVice Chair, Alliance for Social and Economic Rights

June 26, 2013

What are Treaty based Mechanism?

• Treaty based mechanisms are the entities, formed under the provisions of various but respective (core) human rights treaties, done in the auspices of UN , mainly in the form of Committees

• Usually they are said as TREATY BODIES (TBs)

• In general, those mechanisms are spelled by the name of the respective treaties such as CRC Committee, CEDAW Committee

Why the TBs/Committees?

• State parties through ratification or accession to respective treaties have accepted its obligation to comply the provisions of treaties in the national law and practices

• They have also agreed that the Committees may periodically observe/monitor the level of compliance of the treaties in their respective countries

• This effort is made to ensure HR and Fundamental Freedoms to the people of state parties

• UN (members) has a realization that HR and FF are essential for human development and human development is essential for enjoying human rights- Quote Amartya Sen- UNDP- Human Development Report 2000

• Therefore State parties are obliged to promote , protect, respect for and fulfill HR obligations enshrined on HR treaties

HR Treaties and Treaty Bodies/Committees

– International Covenant on Civil and Political Rights( ICCPR), 1966, Art- 40, Human Rights Committee

– International Covenant on Economic, Social and Cultural Rights (ICESCR)1966, Committee formed under ECOSOC resolution- ICESCR Committee

– Convention on the Elimination of the All Forms of Discrimination Against Women (CEDAW), 1979-Art 18, CEWAW Committee

– International Convention on the Elimination of All forms of Racial Discrimination (CERD) 1965, Art 9, -CERD Committee

– Convention on the Rights of the Child (CRC), 1989- Art 44-45 - CRC Committee

– Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment (CAT), 1984 Art- 19, CAT Committee

– Convention on the Promotion and Protection of the Rights of the Migrant Workers and their Families (CMW), 1990 Art 73 – CMW Committee

– Convention on the Rights of Persons with Disabilities (CRPD), Art 35-36- CRPD Committee

– Convention on the persons with Enforced Disappearance (CED), Art 28, – CED committee

Period for Submission of the Report

• ICCPR- within one year after the Covenant entry into force. Thereafter as per the request of HR Committee

• ICESCR- within two years first, then in every five years

• CEDAW- within one year first, then every four years

• CAT-within one year first then every four years

• CERD- First time, within one year of the commencement of the treaty then in every two years or as per request of the Committee

• CRC- two year first, and in every five years

• CMW- two years first, and in every five years

• CRPD- two years first, then in every five years or as per the request of the Committee

• CED- Two years first then (no reporting obligation so), as per the request of Committee

Report Submission Procedures

• As a part of fulfilling state obligation government have to prepare state party report and submit to the respective Committees in the stipulated period

• In Nepali context related ministries ( Home Ministry for ICCPR) are responsible to coordinate and prepare the report

• The report would be submitted via Ministry of Foreign Affairs

Procedures for preparation of reports are as follows

– Form a team of experts with responsibilities to prepare the draft report

– Initially make a work plan with time frame and major activities during the preparation of the SP report

– Create baseline/benchmarks and targets as well, if needed

– Approach and direction undertaken to ensure aim of work

– Consultation with the larger stakeholders across the country

– Review of the documents, mainly M&E report, midterm review report, impact analysis reports of programs and activities during reporting period

– If any revisit made in the planning and programming

– Review of law, policy, practices on the issues

– Expertise and professional opinion

– Any other relevant reports and lesson learnt , such as comments on the lapses in the earlier reports

– Exhaustive, correct and critical review and analysis of the fact and situation

– Revision and receiving input from the experts and related agencies

– Follow the UN reporting guidelines

Who Can Submit the Report? a. National governments

b. NHRIs – Expected independent and neutral report

c. NGOs- can submit the report that is commonly said as shadow report• Shadow report is like a counter report after surveillance to

state party activities and report• Shadow reports is usually critical to the state party report

What SP Report is Expected to Contain?

• Analysis of national efforts and achievements to comply treaty provisions with correct facts and figures

• Major progress made on the improvement of law, policy, mechanisms/institution, capacity, and practices

• Any aim, plans, programs, strategies, commitments made to achieve?

• Comparing in the proportion of success and un-success to ensure aim

• Level of achievements and inability factors to achieve • Any unforeseen challenges – state with fact and figures in

measurable terms. Also mention that the challenges were unforeseen at the time of earlier reporting period and they appeared during reporting period

• Constraints- analyze with genuine reasons and facts that constraints prevented to achieve the aim- with fact and figures in measurable terms. Ensure such constraints were not predicted before the reporting period.

• Ways ahead- what you do next? What is your target point? Or what you want to achieve within given timeframe to comply with treaties? What measures you adopt to mitigate constraints and challenges? What plan, program, strategies you undertake to ensure the aim? What is your risk mitigation strategy (along with alternative strategy) if you foresee its need ?

• Report size is not limited in particular pages

NGO/Shadow Report• NGOs are expected to follow procedures laid down in

UN guidelines for the preparation of shadow report

• This report primarily raise the issues that has to be addressed with due priority, but Government is either hesitant or reluctant to address the issues

• NGO say lot of things did not happen due to inaction, ulterior motive or inefficiency of government

• The shadow report is not only for criticism but for commendation of good works of state as well

• Difference in opinion with the SP report and Shadow reports may be many, such as difference in priority setting for activities, process implication, reluctance of public authorities, efficiency gap, resource constraints, will power or poor commitments among others

• Both the reports are expected to be independent but neutral and analysis is proven by the correct fact and figures

Hearing Upon Report Hearing would be conducted by the respective

Committees mainly based on: – States party reports – Individual petitions -subject to admissibility criteria– Inter State complaints . ICPED and the Optional Protocol to

ICESCR include these competences but they are not in force yet.

– Inquiries- into allegations of grave or systematic violations and, when the ICPED enters into force, the Committee on Enforces Disappearances will also have this competence.

– On-site visits and observation

– Treaty body reports

– Shadow reports

– Statements and testimonies ( if applicable)

– Judicial note and observations

– NHRI reports

– Any other relevant information

• Government representatives can orally submit the report

• Committee members put set questions to the representatives of the governments

• NGO representative may also make oral submission upon their report

• NHRI representatives can attend the proceedings

Concluding Observations

• Based on the hearing the Committees by the name of Treaty Bodies pass concluding observations

• This basically come with following observations– Appreciations for the work done– Level of efforts whether sufficient or low?

– Efficiency gaps– Commitment gaps– Laxity in the part of state – Recommendations for further efforts with

timeframe– Recommendations for technical support and

capacity building– Any other relevant comments

Individual Communication Procedures

Some Treaty Bodies may entertain individual communication as below

– If there is exhaustion of all domestic remedies (within one year in OP-ICESCR);

– Should not be an anonymous communication

– Communicated by a person within jurisdiction of State party;

– Victim/on behalf of the victim/someone; can communicate

– Complaint must be compatible with relevant instruments provisions;

– If no other international investigation process on the matter;

– not ill-founded or unsubstantiated violation ( i.e. CRPD)

Treaty Bodies/ Provisions on Individual Communications

– Individuals of Parties to ICCPR optional protocol (OP) can communicate to HR Committee under Art 2 of OP

– Individuals of Parties to ICESCR optional protocol (OP) can communicate to ICESCR Committee( OP is yet to come into force)

– Individuals of Parties to CEDAW optional protocol (OP) can communicate to CEDAW Committee ( OP is ratified by few states)

– CAT -Art. 22 OP-the party must declare that it recognizes competence for communication

– CERD-Art 14 A State Party may declare/recognizes the competence of the Committee to receive and consider individual communications

– CMW-Art. 77-the States have to recognize the competence of the CMW to receive individual complaints

– CRPD Art 1 OP- By the ratification of the Protocol by a State Party, no separate declaration required

– CED Art. 31- The States have to recognize the competence of the CED to receive individual complaints

– CRC- does not appear

Interim (relief) Measures

– ICCPR- Rule of Procedure n. 86- HR Committee can ask for interim measures to avoid irreparable damage to the victim

– CEDAW- Art 5. OP- under the individual complaint procedure, CEDAW can ask for interim measures to avoid irreparable damage to the victim

– CAT-Visit to territories of the State Party

– CRPD-Art 4 OP -Under the individual complaint procedure- urgent consideration to avoid possible irreparable damage

– CED-Art. 30 + 33-34- Urgent actions + Country visit– ICESCR- Na– CRC-Na– CERD-Na– CMW- Na

Inquiry Procedures

– ICESCR-[Art.11-12 Optional Protocol (Not in force). Fact finding mission in violation of ESCRs

– CEDAW- Art 8 OP- But a State may opt-out Inquiry procedures while making Ratification of the Optional Protocol

– CRPD- Art 6 OP -inquiry procedures including visits of the territory

– CAT -Art. 20 Compulsory

– CED-Art. 33- 34- Country visit with the consent of the State party and after observations and recommendations.

– In case of information of widespread disappearance the Committee can bring the matter to the GA through the secretary General

– HR Committee- No– CRC-No– CERD-No– CMW- No

Prevention Procedure– HRC- No– ICESCR- No– CEDAW- No– CRC- No – CERD_ No– CMW- No– CRPD- No

– CAT- Art 11 OP Sub Committee on Prevention can look into issue

– CED- Art- Country visit in case of receiving substantial information indicating a serious violation of the Convention

TB-HRM out of UN System

The International Criminal Court (ICC)

• Formation of ICC was a breakthrough of international (human rights) law and jurisprudence

• Formed under the Rome Statute of the ICC (treaty)

• Looks upon the cases of gross HR violation, crimes against humanity, genocide and violation of IHL

• Hearing of cases as referred by ICC prosecutors

• If national jurisdiction is exhausted and seems unable to provide the remedies

• Entertain the incidents that happened after the date of ratification, in general

Fore more here discuss,

discuss and

again discuss Thanks