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International Protection of Human Rights
The Authority of Human Rights Conventions, Courts, and Enforcement Mechanisms in International Law
The United Nations human rights efforts and those of major intergovernmental organizations (IGOs) operate under the assumption that the sources of international law are as stated in Art. 38 of the Statute of the International Court of Justice. Basic provisions for the United Nations and for the Council of Europe are in the organizations' charters, which function as constitutions of the IGOs. Subsequent conventions can be seen partly as implementing legislation for the organizations' broad goals.
Treaties are also the international equivalent of "legislation" broadly stated, as the basic norm-creating text. The major multilateral treaties may occupy any one of a number of places in a hierarchy of legal authorities depending on the domestic law of the member state. A treaty may be on a par with domestic constitutional law, above it, somewhere between domestic constitutional law and domestic statutory law, or lack validity. In the last case, an enabling or implementing law of the jurisdiction must expressly declare a treaty to be a law of that country. These variations are true for member states of the UN and of the Council of Europe, parent bodies of the most widely-known human rights treaties.
The treaty-making process may be important to researchers seeking the "travaux preparatoires" for a given convention, or as an aid in interpreting or predicting the outcome of complaints. After the adoption in 1948 of the Universal Declaration on Human Rights, the United Nations assigned the Human Rights Commission of the Economic and Social Council to draft the major human rights covenants which became the International Covenant on Civil and Political Rights (CCPR) and the International Covenant on Economic, Social and Cultural Rights (CESCR). Subsequent human rights treaties have usually been drafted at the level of the Commission or a working group. Changes can be made in plenary or general, open discussions of the Third Committee (human rights) or the Sixth Committee (law) of the General Assembly. Conventions might be drafted by human rights organs themselves. They are usually opened for signature by the General Assembly as a whole or by special conferences such as recent ones in Vienna (World Convention on Human Rights, 1993, reported at A/CONF.157/24 (Part I) and Beijing (4th World Conference on Women, 1995) .
TREATY UPDATING: U.N.-sponsored treaties
Updating information on parties or signatories and their reservations can be done by consulting 1) Multilateral Treaties Deposited by the Secretary-General , UN Doc. ST/LEG/SER.E/13, Sales No. E.95.V.5 (annual), which is about a eighteen months old in print before the next is issued; very up-to-date information within ten days or so is available at the web version , 2) the January issue each year of the Human Rights Law Journal (Kehl-am-Rhein Germany: N.P. Engel, 1980-); 3) Human Rights: International Instruments- Chart of Ratifications as at... (NY: UN, ST/HR/4/Rev.6; and 4) by calling the U.S. State Department Treaty Desk at (202) 647-2044 to the U.N. Treaty Affairs Dept. at (212) 963-5047.
Apart from the multilateral treaty regimes which will be the main focus of this outline, human rights have been the subject of declarations and resolutions of the United Nations, specifically as adopted by the General Assembly. Some resolutions may declare broad principles of international law, and some may frame the principles for a treaty. For example, just as the Universal Declaration framed the "international bill of rights" on which the CCPR was built, the Declaration of the Rights of the Child provided a foundation for the International Convention on the Rights of the Child. Resolutions are non-binding but very persuasive evidence of international law.
Finally, another source of United Nations international law affecting human rights law is the International Law Commission, reporting to the General Assembly on its mission of codifying and analyzing the law. Non-mandatory codes such as the (Codex Alimentarius ) food standards promulgated jointly by the (Food and Agriculture Organization(FAO) and the World Health Organization(WHO) have become part of some countries' laws, and thus have set legal or regulatory standards globally.
The International Court of Justice(ICJ) declares, and, to a limited extent, enforces, the international legal order. Its judgments are binding only on parties which have accepted the court's jurisdiction. National courts also refer to UN treaties and declarations. The cause of human rights is specifically furthered, however, by the supervisory or enforcement mechanisms of the bodies or courts set up either regionally or by the terms of a particular treaty. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides in its Art. 29(1) and the Convention against Torture (CAT) in its art. 31 that disputes between States Parties as to interpretation or application of its terms may be taken by one of the parties to the dispute to the ICJ. This outline will cover procedures and documented results for major treaties of the UN systems and the Council of Europe's system through the European Court of Human Rights.
All of the treaties can be accessed in full text , and their implementation procedures follow a general pattern which includes the following steps: 1) periodic reports by state parties; 2) review by a committee with their questions sent to the reporting states; 3) occasional inquiry by a sub-committee or special rapporteur; and 4) a committee report noting problems with the states' conduct, if any, and reiterating the requirements of the treaty. The CESCR only provides for state reports, which are then considered by the ECOSOC; it was not until 1986 that a committee was created to review and comment on the states' reports. CEDAW provides for the Commission on the Status of Women to receive communications, but power to act on them is oddly lacking. The Convention on the Rights of the Child initially set up a committee which has no authority to receive individual or inter-state complaints but reviews the periodic reports.
Linked through the Human Rights section of the UN web site is a separate UN Human Rights Web Site. This is accessible through their Research Guide . Clicking on "Human Rights Committee" under "Treaty-based Bodies" will take you to a wealth of information for the Committee in its role as the monitoring body for the CCPR under its Optional Protocol, as is examined below in more detail.
A. CCPR, adopted 1966; entered into force 1976
This treaty did create a body of experts to oversee its full implementation: the Human Rights Committee (HRC) reporting to the General Assembly. The process is documented, in print sources, as follows:
B. CCPR Optional Protocol (OP), adopted 1966; entered into force 1976
Under an optional protocol, the HRC is granted authority by parties to the protocol to consider complaints, called "communications," from individuals alleging violations of human rights as specified by the CCPR. N.B.: it does NOT act as a court issuing binding judgments. The HRC forwards its interpretation of the CCPR and its opinion as to whether or not there has been a violation to the state concerned and to the individual. This has the effect only of building up a body of "jurisprudence" on the covenant as applied to specific factual situations; they become part of a body of norms but not binding precedent. There is a second Optional Protocol on abolition of the death penalty which is substantive and not procedural.
The process is documented as follows:
At the web site, the procedure may be tracked through the Treat Bodies Database from the first page of the Human Rights Committee part of the research guide- you are now in a database from the UNCHR in Geneva which uses the same format for all the monitoring bodies of all the major human rights treaties.
Using a pull-down menu, one can click on "Documents" and choose the option "by treaty," for example, and under the expanded list for the Human Rights Committee, one can see the grievances or "Communications" under "Jurisprudence," look up General Comments to the treaty articles by way of interpretation, and look at the reports of states parties under the periodic reporting requirements. One tip: the Communications listed are actually fairly complete but you may need to scroll through several screens to track a case from a certain date or with a certain symbol number since they are in symbol order rather than chronological order strictly speaking, though it is a reverse chronology that seems to be represented in the symbol listings.
C. International Convention on the Elimination of All Forms of Racial Discrimination (CERD); adopted 1965; entered into force in 1969
This convention is worth noting because it is the most widely ratified of any international convention other than the 1949 Geneva Conventions on the laws of war. Its implementation and enforcement procedures are otherwise virtually the same as for the CCPR. Its article 9 provides for periodic state reports, but few states have made the optional declaration under article 14 to allow complaints to be brought to this committee; only one had been brought as of 1990. The reports are summarized and communications would be collected in the 18th Supplement to the GAOR, A/xx/18.
UN Finding Aids (in print)
On the web look at the Treaty Bodies Database )
The UN Readex CD-ROM index or the UNDOC official UN index can help you locate periodic reports, but the communications are listed year by year. There are only two compilations of selected decisions under the OP: CCPR/C/OP/1 (1985) and CCPR/C/OP/2 (1990). Therefore, knowing the parties' name(s) and the approximate year is crucial. There can be considerable lag time between filing and rulings either on admissibility or on the merits. Selected communications are now to be found in an unofficial source, International Human Rights Reports (Nottingham UK: Human Rights Centre, U. of Nottingham, 1994- ).
D. All other Treaties: CEDAW, Rights of the Child, Torture: use the print and online sources indicated in the above examples.
Council of Europe Home Page
There have been 11 protocols to date; not all members of the original treaty have ratified all of the protocols. Always check the officially-published Chart Showing Signatures and Ratifications of Conventions and Agreements Concluded within the Council of Europe (Strasbourg, 1988- looseleaf, , which is updated quarterly showing parties to all protocols and other treaties of the Council of Europe, published originally in the European Treaty Series (Strasbourg, 1954-). Similar information is provided on the internet by the Treaty Office.
New Procedures and Structure of the Court after October 31, 1998
According to the official information provided by the court itself at its web site , Protocol No. 11 to the European Convention on Human Rights has established a new procedure and streamlined structure which is taking effect on a timetable:
The new European Court of Human Rights came into operation on 1 November 1998 with the entry into force of Protocol No. 11. On 31 October 1998, the old Court had ceased to function. However, the Protocol provided that the Commission should continue for one year until 31 October 1999) to deal with cases which had been declared admissible before the date of entry into force. (text explaining "transitional period" under "Historical background" at the site for the European Court of Human Rights).
The basic change was that the Commission was abolished in favor of a single, full-time court with the number of judges being the same as members of the treaty (the present number is forty). The judges serve personally and do not represent a contracting state. The Court is divided into three sections, with Committees of three judges set up within each section. Each section has a Rapporteur who decides if the case will be referred to a Committee or a Chamber. In the latter case, the Chamber will determine both admissibility, that is, whether or not the applicant states a valid claim under the convention, and the merits. All state applicants are referred directly to a Chamber. Otherwise, the Committee determines admissibility, and a case ruled inadmissible is dropped, and one ruled admissible goes on to the Chamber for determination on the merits. Occasionally it is contemplated that an unusual question or interpretive issue may arise that would cause a referral to a Grand Chamber. But the usual case would proceed with written submissions from both sides or even other contracting states, efforts at friendly settlement, and finally to judgment.
Decisions are reached by majority vote with separate opinions to be appended to the judgement. The parties have three months to ask for a referral to a Grand Chamber, but if there is no such referral, the judgment becomes final and binding on the parties. The Committee of Ministers of the Council of Europe supervises execution of the judgment, which is usually remedial action of some kind. At the request of the Committee of Ministers, the Court may issue advisory opinions, arrived at by majority vote.
The former procedure and its documentation, primarily in print:
Under the older procedure, the Committee of Ministers worked with the two main bodies directly concerned with protecting human rights under the convention, the European Commission on Human Rights (the Commission), and the European Court of Human Rights (ECHR). The Commission, permitted since 1990 (Protocol 8) to form three-person committees to review applications for admissibility, can reject inadmissible petitions by a unanimous vote. The ECHR has as many judges as members of the Council of Europe, but seven-judge panels hear most complaints. N.B.: the state accused of a violation must have acknowledged the right of an individual to lodge complaints against it.
The Commission process is documented as follows:
European Commission of Human Rights
Summaries and selected reports of the European Commission may be found in the two privately-published periodicals listed above as Human Rights Law Journal and International Human Rights Reports. Only three indexes (latest 1993) have been published for the Decisions and Reports of the European Commission of Human Rights (Strasbourg, 1975- ), which contains decisions on admissibility and reports on violations.
Minutes of the Plenary Session of the European Commission of Human Rights, (Strasbourg, 1954- ) contains summaries of the information on cases declared admissible, cases adjourned, renewal of competence of Commission to receive petitions by the member states (text of the declaration is an appendix to the minutes).
Stock-Taking on the European Convention on Human Rights-A Periodic Note... , 1954-1989 (Strasbourg, 1984) monitors the status of a case before the Commission but irregularly published.
Council of Ministers (can be known as Committee of Ministers in this context)
Resolutions under Arts. 32 and 54 may also be found in the unofficial Human Rights Case Digest (London: Sweet & Maxwell and the British Institute of Human Rights, 1990- ).
Above-cited Resolutions set and also general resolutions not part of the human rights procedures are distributed separately or may be found in European Yearbook: Annuaire Europeen (The Hague: Nijhoff, 1955- ).
European Court of Human Rights
In addition to the Series A and B (until 1996) above, there is a Digest of Strasbourg Case-Law Relating to the European Convention on Human Rights , Koln: Carl Heymanns Verlag, 1984 - . It is a loose-leaf case finding tool. Cases are also on Lexis dumped together with decisions of the European Court of Justice, in the Cases file of the Europe Library. Citation style for the case law changed with a renumbering of the cases and a title change in the name of the reports. The series in which the judgments were published was European Court of Human Rights, Publications de la cour européeane des droits de l'homme. Série A, Arrêts et décisions=Publications of the European Court of Human Rights. Series A, Judgments and Decisions. Strasbourg : Greff de la Cour, Conseil de l'Europe, 1961-1996. Series A designations were dropped with the close of Series B. (Publications. Série B: Mémoires, plaidories et documents=Series B: Pleadings, oral arguments and documents. Strasbourg : Council of Europe, Registry of Court, 1961-1996) and the new title of the reports is Recueil des arrêts et décisions , Köln : Carl Heymanns Verlag, 1996- . Citations must now include the year and the part number as in 1996-I, etc.
Collected Edition of the "Travaux Preparatoires" of the European Convention on Human Rights , The Hague: Martinus Nijhoff, 1975-1985. 8 vols.
Yearbook of the European Convention on Human Rights , The Hague: Martinus Nijhoff, 1955- . Statistical information is provided along with summaries of activity to date.
Relationship to the European Union?
The treaties establishing the European Union created a separate Court of Justice for this separate regional organization, which has overlapping membership with the Council of Europe. The role of the Court of Justice is to enforce those separate treaties, but it became apparent that there was no relief for alleged human rights violations by supranational Union institutions. The Court of Justice eventually declared over time that fundamental rights were part of their general jurisprudence and looked to the ECHR for guidance. As it relies more and more on EHCR case law for the fundamental rights aspects for its decision-making, and given that all member states of the EU have ratified the European Convention on Human Rights and accepted the ECHR's jurisdiction, the two bodies of law are drawing closer together under common constitutional principles.
A. The Inter-American System under the Organization of American States
The Inter-American Court of Human Rights and the Inter-American Commission of Human Rights function in a manner similar to that of the European system. both the Court and Commission materials may be accessed at the Minnesota Human Rights Library.
In print the judgments may be found officially in Inter-American Court of Human Rights, Serie A, Fallos y opiniones . San Jose, Costa Rica : Secretaria de la Corte, 1982- . The Commission reports can be tracked through its annual reports at Inter-American Commission on Human Rights, Annual report of the Inter-American Commission on Human Rights . Washington, D.C. : General Secretariat of the Organization of American States, OEA/Ser.L/V/--- . Finally, a good loose-leaf source for these often-scattered materials is Human rights : the inter-American system. Dobbs Ferry, N.Y. : Oceana Publications, 1982- .
B. Universal Islamic Declaration of Human Rights
The Islamic Declaration is at http://www.alhewar.com/ISLAMDECL.html .
For comparative purposes, one might want to look at comparative materials as all jurisdictions come to terms with the notion of universal norms of human rights.