Note of Chapter 9: human Rights enforcement mechanism from exam perspective (cursory Note)
Chapter 9: human Rights enforcement mechanism.
- There are two types of human rights monitoring mechanisms within the UN system.
- Treaty based mechanisms.
- Charter based mechanisms.
A Charter based mechanisms:
- The charter best bodies include the human right council, special procedure, UPR, and independent investigation.
- Member states of the United nation follow this mechanism.
I. Human rights council (HRC):
- HRC was created by the United nation general assembly on 15th March 2006.
- HRC replaced the commission of human rights (CHR) adopted by ECOSOC because of following reasons:
- CHR has credibility gap.
- CHR was unable to respond to important human rights situations.
- Excessive politicization in CHR.
- HRC has the ability to discuss thematic human rights issues and situations.
- It addresses Human Rights violations and makes recommendations on them.
- Composed with diplomats who work on the basis of national policy not human rights experts.
- HRC consists of 47 members elected for 3 years by secret ballot.
- Regular sessions; 3 times annually.
- Guiding principles: -
- Universality, impartiality, objectivity and non-selectivity.
- Constructive international dialogues and cooperation for protection and promotion of human rights.
Mandate of HRC: (authority given to HRC to perform certain tasks like:)
- For the promotion of human rights
- For the protection of human rights.
- Coordination and cooperation.
Examples:
- HRC adopted a decision to dispatch a high-level mission to access the human rights situation of Sudan.
- HRC conducted a fifth special session on the human rights situation in Myanmar on 2nd October 2007.
HRC complaint procedures on human rights violation:
There are two mechanisms for communication and assessments, which are:
1 Working group on communications:
- Composed of 5 members from each regional group.
- Examine the communications.
2 Working group on situation:
- It is formed by the council itself.
- Collect the evidence of a consistent pattern of violation of human rights and submit it to the HRC. - why? because to check admissibility of communications.
- After receiving all admissible applications to the procedure, they develop a report with recommendations and submit it to the human right council (HRC).
Inadmissibility of complaints:
- Complaints which are politically motivated.
- Complaints which are inconsistent with the UN charter and UDHR.
- Complaints that lack a factual description of the alleged violation.
- Complaints containing abusive language.
- Complaints exclusively based on reports disseminated by mass media.
- Complaints that are already dealt by special procedure, treaty body or other UN or similar regional complaints procedures.
- Complaints in which domestic remedies have not been exhausted.
II. UPR: (UNIVERSAL PERIODIC REVIEW).
- It is a unique process which includes the review of human right records of the UN States.
- UPR is a state driven process under the HRC which gives opportunity to each state to declare what measure they have taken in implementation and fulfillment of human rights.
It is a human right reporting process by the government every 4.5 years to the human rights council.
UPR report preparation process:
1 Consultation required:
- constitution with different groups with government officials, NGOs, political parties etc.
- Consultations in form of meetings, seminars etc.
- Interactions across the country from grassroot to center.
2 Review and study:
- Review national government reports.
- Review NGOs, CSO, CBO reports.
- Assessment of the relevant decision of superior courts on issues relating to human rights.
- And furthermore, ensures that correct facts and figures are used during preparation of the report.
3 NHRI/CSOs:
- They submit human rights reports to the human rights council in coalition or separately.
- They may be critical to the government report.
- The reports are not mandatory and should not exceed 10 pages.
UPR report includes the following:
- Human rights situation in the country.
- Measures taken to enforce (implement) human rights.
- Thematic issues to human rights.
- And challenges faced by the country during implementation of such rights.
III. Special procedure:
Composed of independent human right exports with a mandate to report and advise on human rights from a thematic or country specific perspective.
Special procedure mandate holders are made up of:
- special rapporteurs,
- independent experts and,
5 members working groups of human rights.
- The report; once a year to the council and general assembly on their findings.
- They are only mechanisms alerting the international community regarding human rights issues.
- There are two types of special procedures mandate:
- Thematic mandate (deals with thematic issue of human rights).
- Country specific mandate (deals with various human rights issues within a state).
- By September 2020, there are 44 thematic and 11 country mandates.
- They are non-paid and elected for a 3-year mandate that can be re-conducted for another 3 years.
Basis of special procedure appointments:
- Expertise
- Independence
- Integrity
- Impartiality
- Gender balance
- Objectivity
- Equitable geographical representation.
B. Treaty based mechanisms:
- Only those states which are party to the treaty are bound by this mechanism.
- It is created to monitor the implementation of the core human rights treaties.
- It is established by treaty provision and is less effective than charter-based mechanisms.
- Independent experts of the treaty body (committee) assess the compliance of the treaty by State parties.
Nature of treaty bodies:
- Mandate (power) to monitor and review the implementation of relevant treaties by State parties.
- They are composed of independent experts nominated and elected by State parties.
The members of treaty committee meet periodically throughout the year and monitor state implementation by the following means:
- State reports (by each signatory to treaty)
- Individual complaint mechanism.
- Inter-state complaint procedure.
- Inquiry procedure.
General comment or recommendation.
1 State party reporting:
- After the state ratifies a treaty, it needs to inform the concerned treaty body regarding implementation.
Then, the States first obligation is to submit a report to the committee of the respective treaty body.
For example, in the case of ICCPR, states submit report to a human rights committee established by article 28 of ICCPR.
- The report shall be submitted on the basis of the issues that have been produced by a report task force. (Consists of 4-5 working people).
- Before entering into the constructive dialogue, the committee prepares a list of issues based on the previous report of the state.
- After the state replies to the list of issues, the committee prepares its concluding observations.
- Committee may request to submit a full report when a fundamental change occurred in the States party's political or legal approach. otherwise, states in their periodic report must only answer the list of issues.
- Above figure is important. Furthermore, in the figure, opportunity for input from civil society, national human right institutions (NHRIs) and the UN system has been given. (Don't forget to mention it in exam and draw the above figure for good marks).
2 Individual complaint mechanism:
- HRC considers individual complaints which must show the violation of individual rights under ICCPR.
- First optional protocol to ICCPR established the individual complaint mechanism.
- The complaint require:
- Basic information
- The state party to which the complaint is directed.
- Steps taken to exhaust domestic remedies.
- Chronological list of facts on which the complaint is based.
- Checklist of supporting documents.
3 Inter-state complaint procedure:
- ICCPR provides this mechanism for States to complain about violation of treaty provisions by another state.
- For this procedure to be effective, both states must have made the declaration of accepting this procedure.
4 Inquiry procedure (complaints of systematic violations):
- ICCPR doesn't have a provision regarding it.
5 General comment or recommendations (concluding observation):
- HRC issues general comments to clarify articles of ICCPR.
Role of civil society / NGOs or their participation:
- They do not require ECOSOC consultative status to engage with HRC.
- Any group (NGOs) may submit information to a committee on behalf of a victim.
- CSOs are encouraged to participate in committee actively by providing:
- Alternative report on states implementation of ICCPR.
- Comment on state report.
- Convey information on state progress.
- HRC invites NGOs and other civil society stakeholders during the process of drafting a list of issues.
- Committee welcomes oral presentations by NGOs and other civil society.
All NGOs /CSOs get invitations to attend committee sessions as observers but are not given the opportunity to address the committee.
Prepared and edited by Madhu Dahal and Manish Rajak.
